Current State of Affairs
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide
general information and in no way constitute legal advice. If you have specific questions or concerns, please
consult legal counsel.
ACA
– It’s All About the Numbers
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
WHAT is ObamaCare?
ObamaCare (AKA The Affordable Care Act) is a
US law aimed at reforming the American health
care system. ObamaCare's main focus is on
providing more Americans with access to
affordable health insurance improving the
quality of health care and health insurance,
regulating the health insurance industry, and
reducing health care spending in the US.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
What makes an ACA compliant
health plan in 2014?
• Out of Pocket Maximums capped at $6,350 for
individuals ($12,700 for families)
• Guaranteed Eligibility for ALL individuals – No
Pre-Existing Condition Limitations
• Preventative Care must be covered 100%
• No lifetime or annual limits in 2014
• Stand Alone HRAs are GONE.
• Maximum Wait period – 90 days in 2014 upon
plan year renewal.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Which Sandbox is yours
Mid-Size ALE?
Small group?
Large ALE?
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
Who has to “Pay or Play”?
Applicable Large Employers “ALEs” are those with 50 or more FTEs
and have to offer Affordable and Minimum Value healthcare to all
Eligible Full-Time Employees.
Employers with fewer than 50 FTEs are Small Group Employers and are NOT
mandated to offer coverage.
Formula: FT (30 hrs+ a wk) + (Total part-time hours
worked in a month/120) = FTE (Full-Time Equivalents)
Example: 93 FTs + (960 hrs/120 = 8) = 101
**RUN FORMULA FOR 6 Consecutive Months in 2014.
For 2015, only ALEs with 100+ FTEs are required to offer coverage.
Those ALEs with between 50 and 99 FTEs must certify numbers.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
Counting your Workforce
- All of them
• Control Group Rules – multiple EINs equate to
one ALE.
• Affiliated Service Group Rules – Management
Company.
• Misclassification of independent contractors.
• Common Law Employer and co-employment
relationships.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Common Ownership and
Control Group Tests
• Internal Revenue Code’s controlled
group rules under IRC §§414(b), (c),
(m) or (o).
• All count for determination of Pay or
Play.
• Penalties of non-compliance are
entity specific.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Individual Mandate
Fines and Penalties
• FOR NOW, INDIVIDUALS STILL SUBJECT TO
THE FOLLOWING:
$95 – 2014
$325 – 2015
$695 - 2016
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Small Group Employer
Obligations and Options
Fewer than 50 FTEs for 2014.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
Insured Small Group Requirements
• Essential Health Benefits (not Self-Insured Plans)
•Ambulatory Patient
Services
•Emergency Services
•Maternity & Newborn
Care
•Pediatric Services
•Prescription Drugs
•Laboratory Services
•Mental Health & Substance Use
Disorder
•Preventive & Wellness Services
•Chronic Disease Management
•Hospitalization
•Rehabilitative/Habilitative
Services & Devices (devices tax)
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
Insured Small Group Requirements
Guarantee Issue and No Medical Underwriting
3:1 Modified Community Rating
1.
2.
3.
4.
Potential Liability – be careful that you have a justifiable business reason
Age
for hiring someone younger aside from ACA.
Community
Smoking (5:1)
Family Size
Deductibles cannot exceed $2,000/$4,000 unless
carrier obtained a waiver from HHS.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Large Group Employer
Obligations and Options
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
What do You have to do in 2015?
FT + (PT monthly hrs/120) =
Perform for 6 consecutive months;
add; divide by 6; round down.
FTE
50-99
Do not have to comply in
2015 but have to certify
numbers to IRS.
This means
TRACKING.
FTE 100+
Have to comply with ALE rules
in 2015.
Be careful – if you have over 100 FTEs
as of 2-9-14, and your numbers drop
later in the year, make sure there are
sound business reasons for the drop
unrelated to ACA.
Offer A/MV Coverage to all
Eligible employees or face
potential fines/penalties.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide
general information and in no way constitute legal advice. If you have specific questions or concerns, please
consult legal counsel.
Mid-Size ALEs 2015
(1) Limited Workforce Size. The employer must employ on average at least 50 fulltime employees (including full-time equivalents) but fewer than 100 full-time
employees (including full-time equivalents) on business days during 2014.
(2) Maintenance of Workforce and Aggregate Hours of Service. During the period
beginning on Feb. 9, 2014 and ending on Dec. 31, 2014, the employer may not reduce
the size of its workforce or the overall hours of service of its employees in order to
qualify for the transition relief. However, an employer that reduces workforce size or
overall hours of service for bona fide business reasons is still eligible for the relief.
Maintenance of Previously Offered Health Coverage. During the period beginning on
Feb. 9, 2014 and ending on Dec. 31, 2015 (or, for employers with non-calendar-year
plans, ending on the last day of the 2015 plan year) the employer does not eliminate or
materially reduce the health coverage, if any, it offered as of Feb. 9, 2014.
Certification through Form 6056 of the above.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
Large ALE (100+ FTEs in 2014) – Compliance in
2015, when?
Fiscal Date
If on 12-27-12, had a fiscal year plan…. hasn’t changed
Changed
fiscal
plan year
After
12-27-12
Have to offer coverage to
comply with ACA on
January 1, 2015.
Offered coverage to at least
1/3 Full-time employees or ¼
Full-time employees on
coverage as of 2-9-14…..
Compliance at beginning of
Fiscal Plan year in 2015.
UNLESS, ALE did not know if over or under 100 FTEs and
performs 6 month calculation for last 6 months of 2014
– then does not have to offer ACA compliant plan to all
eligible until 4-1-15 BUT.
This ONLY applies to those ALEs unsure
of their Large or Mid-size status.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
Large ALE’s Failure to Offer Coverage
Sec. 4890H(a) Penalties “Sledgehammer Penalties” for
2015 only
Does ALE offer coverage to
“substantially all” eligible employees?
2015 - Substantially all = All but
30% of eligible EEs
No
Eligible EE seeks coverage
through Marketplace and
receives premium tax credits.
CAUTION: Employer still potentially
subject to other fines and penalties for
the 30% not offered coverage**
yes
No 4980h(a) penalty payment
owed by employer.
Employer must pay $2,000
per annum for all eligible
EEs (minus 80) regardless of
whether Eligible EEs have
coverage.
**Please see 3-1-14 ETC Newsletter for more on the other penalties.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
SLEDGEHAMMER PENALTY
Example: 103 FTs + (960 hrs/120 = 8) = 101 = ALE
Penalty:
103 FTs – 80 FTs = 23 X $2,000 = $46,000
Example:
500 FTs and WE DO NOT OFFER COVERAGE TO 151 FTs.
349 FTs are on plan.
Penalty:
500 FTs – 80 FTs = 420 X $2,000 = $840,000
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
SLEDGEHAMMER PENALTY
We offered to all 500 FTs but did not keep proof of
when and how it was offered so it looks as though no
one was offered coverage. ONE employee seeks
coverage and subsidies:
Penalty:
500 FTs – 80 FTs = 420 X $2,000 = $840,000
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
A/MV Failures and Penalties
Sec. 4890H(b) Penalties “TackHammer Penalties”
Does employer offer A/MV
coverage to all FT EEs?
YES
No penalty owed by
employer.
A = affordable
(9.5% or less of
employee income)
MV = minimum value
(the plan’s share of the
total allowed costs of
benefits is at least 60%
of such costs )
No and Employee seeks
Marketplace Coverage:
Employer must pay $3,000 penalty for all
employees who buy coverage through
Marketplace and receive premium tax
credits.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Figuring out Affordability
9.5% of Employee ONLY income compared
to lowest cost option of ACA compliant
plan:
 Box 1 of W2 (taxable wages)
 Federal Poverty Line
– $11,490 (100%) up to $45,960 (400%) for one individual.
– $15,510 (100%) up to $62,040 (400%) for a family of two.
– $23,550 (100%) up to $94,200 (400%) for a family of four.
 Hourly Rate (Rate of Pay) BUT
* Can’t use this for tipped or commission
employees.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
TackHammer PENALTY
Who is not eligible for premium tax credits even if
coverage is deemed not AFFORDABLE?
Medicaid Eligible
Medicare Eligible
Earnings over 400% FPL
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
LEGAL CHALLENGES AND SOLUTIONS
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Legal Risks??
• Adjusted Community Rating – based on age
brings potential ADEA discrimination claims.
Private lawsuits
• Offer of coverage to 70% of eligible
employees could subject employers to ERISA
liabilities in 2015. $100 a day per affected employee.
Potential 4980H(b) $3,000 penalty.
Possible discrimination lawsuit.
• 90 days means 90 days, or does it??
Violations of PHS 2708 if use 4th month to offer coverage.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
What are Variable Hour (VH)
Employees?
• It cannot be determined if employee is going to work
full-time on hire date.
• Track hours worked and if average 30+ a week, offer
coverage effective no later than 90 days after eligible.
ADMINISTRATIVE NIGHTMARE
• Seasonal Employees can be considered variable hour
but..
Consider putting a Measurement Period/Stability Period
(MP/SP) Safe Harbor in place.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Variable Hour Rules
1. Measurement Period 3 months to 12 months.
2. Stability Period must be not less than 6 months – equal
to MP.
3. New hires if eligible for coverage must be offered within
13 months.
4. Hours counted are PAID hours not only hours worked.
5. FMLA, USERRA, Jury Duty absences are ignored.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
REMEMBER: 90 Day Eligibility Period
90 days MEANS 90 days
– Calendar days not business days
– Holidays and weekends COUNT
2 Year Extension for Canceled Health Plans
– still cannot have a wait period longer than 90 days.
Orientation Period – hmmmmm
- no longer than 30 days
- have to have a justified business reason (not ACA
avoidance)
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide
general information and in no way constitute legal advice. If you have specific questions or concerns, please
consult legal counsel.
Participation Rules
2-27-13 & 2-10-14 Regs (Small Group up to 100):
- Guaranteed coverage regardless of Participation.
- Limitation on Open Enrollment Periods.
2-27-13 HHS Final Regulations, p. 13416; 2-10-14 Department of Treasury Regulations, pg. 90-91; 45 CFR
147.104(b)(1)
2-10-14 Regs (Large Group):
“ In the large group market, a minimum participation
requirement cannot be used to deny guaranteed issue.”
What about rating the group for lack of participation?
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Non-Discrimination Rules
• IRC 105(H) Plans – Self Insured Plans
Eligibility
2 Prong Test
Benefits Analysis
• Fully Insured Plans
– Not yet decided
• Carve Out Issues
– How do we handle these
Legal Analysis
Needed.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
I GIVE UP
- but wait??
No offer of coverage
• Fines assessed for entire
eligible workforce
• Fines are NOT tax
deductible
• Employees leave b/c no
coverage
• Offering NOTHING means
no value
Offer coverage of some sort
• Can use MP/SP safe harbor
for variable hour workers
• Employer premium – tax
deductible
• Build something they want
– you have options
• Build a MEC plan or
alternative – inexpensive
down to maybe $50 a
month per employee
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
The Playgrounds – just to name a few
Critical Illness Plans
HSAs/FSAs
Self-Insured Plans
Excepted Benefits
Integrated HRAs
Fixed indemnity Plans
Accident Plans
Minimum Essential Coverage Plans
Stand alone Pharmacy benefits
Supplemental Medical (Gap) InsuranceVoluntary Products – add ons
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
Helpful Hints
1. Figure out Your Sandbox.
2. Is current plan ACA Compliant?
3. Participation Challenges?? – look at
alternative plan and MP/SP options TODAY.
4. Figure out what benefits employees want.
Most Importantly, START MEASURING NOW.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Recordkeeping, Tracking and Reporting
• Forms 6055/6056 – for 2015 (voluntary for
2014)
• Mid-Size ALE Safe Harbor 2015?
• October 1, 2013 Notice
• Use of independent contractors
– Texas Workforce Commission
– Federal agencies
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Interplay of ACA –
and Other Governmental Regulatory
Initiatives
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Governmental Compliance
• More than 180 federal laws enforced by DOL
• Most common laws that result in lawsuits:
– Age Discrimination in Employment Act (ADEA)
– American With Disabilities (ADA)
– Consolidate Omnibus Budget Reconciliation Act (COBRA)
– Employment Retirement Income Security Act (ERISA)
– Fair Labor Standards Act (FLSA)
– Family and Medical Leave Act (FMLA)
– Genetic Information Non-discrimination Act (GINA)
– Health Insurance Portability & Accountability Act (HIPAA)
– Immigration Reform and Control Act (IRCA)
– Occupational Safety & Health Act (OSHA)
– Personal Responsibility Work Opportunity Reconciliation Act (PRWORA)
– Harassment & Discrimination
– Title VII of Civil Rights Act
– Uniformed Service Employment/Re-employment Rights Act (USERRA)
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
ACA –
What is the US Department of Labor
Doing?
Wage & Overtime and
EBSA Audits
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
DOL EBSA Audits
• Plan Compliance Audits
– Large Group (Grandfathered; fully insured)
– Small Group (Tax credits; no 5500 filing)
• The DOL has estimated that three out of four plans
they audit have an ERISA violation.
• DOL has also estimated that about 70% of audits
with violation have resulted in $$$$$ FINES.
Take away:
We need to audit Client SPDs, plan documents,
and wrap documents NOW to ensure
compliance.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Wage and Hour Enforcement Efforts
in 2013….….
A Quarter Billion Dollars in Back Wages
• benefited more than 269,250 workers who
recouped $249,954,412 in back wages.
• Since the beginning of 2009, the Wage and
Hour Division has closed 145,884 cases
nationwide, resulting in more than a billion
dollars in back wages for 1,238,589 workers.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Fair Labor Standards Act
Harris Health System –
– To pay over $4 million in back wages/fines
Take –away:
Perform internal w Wage and
To 4573 employees
Overtime
correct
deficiencies.
– FailedAudit
to include and
incentive
pay in overtime
wages.
San Francisco Giants pay employees $545,000 in back wages, damages.
December 2013, Hibachi Grill & Supreme Buffet sued by US Labor
Department to recover nearly $2 million in unpaid wages and
Take away:
Educate employers on what
damages
for 84 employees.
they can
and cannot
before
the $400,000
Norwood
Commercial
Contractorsdo
agrees
to pay nearly
them
and
charge
inregulators
back wages andeducate
damages to 96
workers
Misclassified
as $$.
independent contractors.
Houston Ear, Nose & Throat Clinic required to pay more than
$17,000 in back wages for FMLA violations to ONE employee
– went back to work in a part-time position.
Wage and Overtime issues
Perform Exempt v. Non-Exempt analysis
(salary v. hourly).
Track hours – useful for ACA as well.
Pay for training time.
Do not charge employees for uniforms.
Consider the true “regular rate of pay”.
Allowing hourly folks to work “off the clock”.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
FLSA
Exemption Tests – avoiding Overtime
Salary Level
• Earn at least $455 a week ($23,660 a year).
Salary Basis
• Predetermined amount earned regardless of
quality or quantity of work.
Job Duties
• White Collar Exemptions.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in no way constitute legal
advice. If you have specific questions or concerns, please consult legal counsel.
FLSA
“White Collar” Exemptions
Apply to:
1.
2.
3.
4.
5.
6.
Executives
Administrative Employees
Professionals – learned and creative
Outside Sales Employees
Computer Employees
Highly Compensated Employees
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in no way constitute legal
advice. If you have specific questions or concerns, please consult legal counsel.
Use and Misuse of
Independent Contractors
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
Advantages to Independent
Contractor Relationship
• Employer does not pay:
– their share of Social Security and Medicare taxes;
– unemployment taxes;
– workers compensation premiums;
– Employee benefits
• Worker not entitled to make Discrimination
Claims.
DOL quotes one study which estimated employers can cut labor
costs by 20-40% by misclassifying employees as independent
contractors.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in no way constitute legal
advice. If you have specific questions or concerns, please consult legal counsel.
Employee v.
Independent Contractor Tests
• Economic Realities Test (FLSA)
• IRS Control Tests
• Common law 12 Significant Factors –
ERISA for benefit determination
• EEOC Guidance for applicability of
discrimination laws
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in no way constitute
legal advice. If you have specific questions or concerns, please consult legal counsel.
Independent Contractors
• Payroll Fraud: Targeting Bad Actors Hurting
Workers and Businesses introduced in the
Senate November 13, 2013
– Amends FLSA requiring employers to put in
writing who is an employee (who is not) and why
– Penalties assessed for misclassification
– Require States to investigate and assess penalties
– Information sharing between agencies
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
SLEDGEHAMMER PENALTY
Example:
500 FTs and WE DO NOT OFFER COVERAGE TO 150 FTs
because they are designated Independent Contractors.
350 FTs are on plan.
Penalty:
500 FTs – 80 FTs = 420 X $2,000 = $840,000
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
Other Governmental Regulatory
Initiatives
- And a little good news….
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general
information and in no way constitute legal advice. If you have specific questions or concerns, please consult legal
counsel.
Immigration and Customs Enforcement (ICE)
I-9 Audits
The official purpose of the ICE audits is to promote immigration compliance. However, many
employers are fined for poor record keeping rather than for breaking immigration
laws. Hence, good record keeping practices are essential to staying clear of fines.
Only 250 Workplace Audits in
2007; more than 3000 in 2012.
Total fines grew from $1 million
in 2009 to $13 million in 2012.
The number of company owners,
executives, and HR manager
arrests also increased to 238.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
I-9 Forms
• New Form out on March 8. Begin using by
May 7, 2013. Find it here:
http://www.uscis.gov/files/form/i-9.pdf
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Enforced by Equal Employment
Opportunity Commission (EEOC)
1. EEOC filings at an ALL TIME high.
2. Texas and California tied for the most lawsuits filed
in 2011.away: review policies from
Take
3. recruitment
$455.6 million paid
by private
employers into
2011
through
termination
(more than
$51
million
increase over 2010)
make
sure
no
discrimination.
4. EEOC’s mediation program reached record levels in
2011 wherein employers paid more than $170
million in benefits, an increase of $28 million over
2010.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in no way constitute legal
advice. If you have specific questions or concerns, please consult legal counsel.
NLRB what non-union employers need to know:
Board found:
• Policy encouraging employees to resolve conflicts
by speaking with the particular individual was
unlawful.
• A prohibition
on inappropriate
Take
away: employers
needor
tounprofessional
review
comments and
is unlawfully
broad.
handbooks
clean up
overly broad,
• Seeking
confidentiality for workplace
unclear
language.
investigations may be unlawful unless employer
can show confidentiality necessary to protect
integrity of its investigations
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
WHAT IS WOTC?
• FEDERAL TAX CREDIT available to employers
who hire and retain:
– veterans
– individuals from other target groups with
significant barriers to employment.
Annually, $1 billion in tax credits claimed
under the WOTC program.
• $1,200 to $9,600 per individual qualified
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Target Groups
•
•
•
•
Veterans
Temporary Assistance Needy Families (TANF) Recipients
SNAP (Food Stamp) Recipients
Designated Community Residents (living in
Empowerment Zones or Rural Renewal Counties)
• Vocational Rehabilitation Referral
• Ex-felons
• Supplemental Security Income Recipients
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Texas Workforce Commission and
Unemployment Claims
BASIC ISSUES IN TEXAS:
• EMPLOYMENT AT WILL
– Fire or Quit at any time for any reason or no reason
whatsoever.
– No obligation to provide severance
– Careful rules about paying out vacation accrued
• JOB ABANDONMENT
• TERMINATION FOR WORK MISCONDUCT
• ONLY CONTROLLABLE PAYROLL TAX YOU HAVE
(somewhat – at least in some states)
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Why do employers need handbooks?
• Median award for all employment-related
claims in 2009 skyrocketed by 60% over
2008 to $326,640.
• To Combat TWC claims.
• To Educate workforce as to policies and
procedures.
• To avoid a discrimination/harassment
claim.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and in
no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
The Dos and Donts of
EMPLOYMENT
HANDBOOKS
1.
2.
3.
4.
5.
6.
7.
Do identify “regular workweek”.
Don’t prohibit your employees from discussing wages.
Do prohibit retaliation for reporting concerns.
Don’t have contractual terms in handbook.
Do update your FMLA and USERRA policies.
Don’t identify a probationary period.
Do address No Call/No Show = Job Abandonment.
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
YOU HAVE OPTIONS
Head in the sand…..
How do you eat an elephant?
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information and
in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Take Aways
• START NOW to determine:
– Are you an ALE?
– Can you take advantage of variable hour safe
harbors?
– Make sure you are teamed up with a GREAT Broker!
• Perform an internal HR audit on ALL aspects.
• Identify potential risks/liabilities and put a plan
of action in place to resolve them.
• Recordkeeping is KEY – find help if you need it!
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.
Corporate Offices:
55 Vienna, San Antonio TX 78258
Phone: 210-323-7846
alicia@eligibilitytrackingcalculators.com
heather@eligibilitytrackingcalculators.com
Cell: 210-325-2641
cell: 512-508-4353
Updated: 8-2014. Disclaimer: The materials and information contained herein are intended only to provide general information
and in no way constitute legal advice. If you have specific questions or concerns, please consult legal counsel.