10. Equality requirements.
Christopher Olmsted, an attorney with Ogletree Deakins in San Diego says that more gender-equality and pay-equity bills are likely to appear on the docket in days to come. At least in California, where SB 826 is now law, requiring publicly traded California companies to appoint a certain number of women to their boards of directors, other female-friendly measures have passed this year—from legislation on sexual harassment to lactation requirements.
Olmstead told SHRM, "One thing that surprised me this year is that SB 1284, which would have required large employers to report pay-equity data … did not pass in the Legislature." He adds, "In recent years, the Legislature has passed several bills relating to pay equity, and I expected this reporting requirement to be part of the ongoing trend." And considering the number of ways in which California is challenging the status quo, some of these measures may coalesce elsewhere in 2019.
1. New employer tax credit for paid family and medical leave.
The U.S. Department of the Treasury has announced that as part of the 2017 Tax Cuts and Jobs Act, eligible employers who provide paid family and medical leave to their employees during tax years 2018 and 2019 may qualify for a new business credit. Retroactive credit could also be available for setting up or updating a leave policy. Agency guidance clarifies how to calculate the credit, including special rules and limitations. Generally, only paid family and medical leave provided to employees whose prior-year compensation was $72,000 or less qualify for the credit.
2. DOL schedules listening sessions on proposed overtime rule.
Five listening sessions have been scheduled on the proposed rule on white-collar overtime exemptions by the DOL, with the first already having taken place, says the Society for Human Resource Management. Listening sessions on the rule, tentatively scheduled for release in January of 2019, are expected to focus on the salary threshold for white-collar exemptions and the frequency for updating the salary threshold.
According to SHRM, employers also are likely to ask that bonuses be included in the calculation of the minimum salary threshold for the overtime exemptions. The final rule isn't expected to take effect till some time in 2020.
3. QSEHRA deadline for 2019 has passed.
The 90-day deadline for submitting a written notice of availability of Qualified Small Employer Health Reimbursement Arrangement to the IRS has passed for this year. Small employers (those with fewer than 50 full-time employees) who do not provide health coverage to employees were enabled instead by the 21st Century Cures Act to reimburse employees for premiums they pay for individual insurance policies.
According to a report on Houston Harbaugh, 2013 guidance from the IRS in Notice 2013-54 ruled that such arrangements violated the market reform provisions of the Affordable Care Act, subjecting employers who did so to excise taxes of $100 per day per employee. While special provisions were made for 2017 and 2018 by the 21st Century Cures Act concerning the requirement for employers to provide a written notice of QSEHRA availability to each eligible employee at least 90 days before the beginning of each year, employers providing QSEHRA for 2019 get no deadline break—and this year it was October 3.
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4. Medicare Part D notice deadline imminent.
Plan sponsors who offer Medicare-eligible employees prescription drug coverage, take notice: you must provide notices of whether coverage is creditable (actuarially equivalent to Medicare's standard Part D coverage) or noncreditable (when it does not, on average, provide as much coverage as Medicare's standard Part D coverage).
The Society for Human Resource Management reminds employers that the annual requirement must be provided prior to Medicare's Part D annual enrollment period, which begins October 15. Employees who go at least 63 consecutive days without creditable coverage will end up paying more if they enroll in Medicare Part D at a later date. The requirement is not limited to retirees and their dependents; it also includes Medicare-eligible active employees and their dependents and Medicare-eligible COBRA participants and their dependents.
5. FMLA certification forms, notices valid for three more years.
The Department of Labor, according to SHRM, has extended the validity of Family Medical Leave Act forms to August 31, 2021. No substantive changes have been made to the forms, which include Certification of Health Care Provider for Employee's Serious Health Condition, Form WH-380-E; Certification of Health Care Provider for Family Member's Serious Health Condition, Form WH-380-F; Notice of Eligibility and Rights & Responsibilities, Form WH-381; Designation Notice, Form WH-382; Certification of Qualifying Exigency for Military Family Leave, Form WH-384; Certification for Serious Injury or Illness of Current Servicemember—for Military Family Leave, Form WH-385; and Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave, Form WH-385-V.
6. ACA noncompliance penalties rise in 2018.
Employers who fail to comply with the Affordable Care Act for the 2018 tax year face higher penalties. According to ACA Times, the penalty for the Employer Shared Responsibility Payment for Failure to Offer Minimum Essential Coverage, 4980H(a), rises from $2,260 per employee to $2,320; for Employer Shared Responsibility Payment for Failure to Offer Coverage that Meets Affordability and Minimum Value, 4980(b), from $3,390 per employee to $3,480; for Failure to File from $260 per return to $270; and for Failure to Furnish from $260 per return to $270.
7. ADEA case before Supreme Court.
An age discrimination case being heard by the court questions whether the Age Discrimination in Employment Act applies to public employers with fewer than 20 employees, or only those with 20 or more, as is the case with private employers. According to SHRM, the case of Mount Lemmon Fire District v. Guido, U.S., No. 17-587, questions whether the ADEA applies to all public employers regardless of size, in light of a decision by the 9th U.S. Circuit Court of Appeals; other court decisions have ruled otherwise and stopped at the 20-employee threshold.
8. Arbitration agreements in question.
The Supreme Court is also hearing cases on arbitration agreements. One challenges the applicability of such agreements regarding an employee's right to bring a class-action claim (Lamps Plus Inc. v. Varela, U.S., No. 17-988), after an employee brought a data breach class action against the employer. California law requires that contract ambiguities must be interpreted against the party who drafted the agreement, but the plaintiff seeks that the agreement be interpreted under the FAA and Supreme Court precedent to require individual arbitration.
Another challenges whether arbitration agreements are enforceable against workers who engage in interstate commerce (New Prime Inc. v. Oliveira, U.S., No. 17-340). In the latter instance, there is an exception to the Federal Arbitration Act for "contracts of employment" with such workers, and according to the report, "This case should be of particular interest to any businesses that are in the trucking industry or use independent contractors as drivers."
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9. Kavanaugh's presence on the Supreme Court.
In the wake of the battle over the confirmation of Brett Kavanaugh to the Supreme Court, SHRM points out what may be in store for both employers and employees now that he's been seated.
Kavanaugh is expected "to be a strict constructionist, sticking to the text of labor and employment statutes and not expanding workers' rights," says the report, citing John Maley, an attorney with Barnes & Thornburg in Indianapolis. While attorney Mark Phillis with Littler in Pittsburgh is argues that Kavanaugh's rulings on labor and employment don't indicate a bias toward either side, AFL-CIO President Richard Trumka disagrees. In a speech at Yale Law School last month, Trumka said that Kavanaugh "is anything but a neutral," adding that his "confirmation would potentially lock in the pro-corporate tilt of the court for a generation."
10. Equality requirements.
Christopher Olmsted, an attorney with Ogletree Deakins in San Diego says that more gender-equality and pay-equity bills are likely to appear on the docket in days to come. At least in California, where SB 826 is now law, requiring publicly traded California companies to appoint a certain number of women to their boards of directors, other female-friendly measures have passed this year—from legislation on sexual harassment to lactation requirements.
Olmstead told SHRM, "One thing that surprised me this year is that SB 1284, which would have required large employers to report pay-equity data … did not pass in the Legislature." He adds, "In recent years, the Legislature has passed several bills relating to pay equity, and I expected this reporting requirement to be part of the ongoing trend." And considering the number of ways in which California is challenging the status quo, some of these measures may coalesce elsewhere in 2019.
1. New employer tax credit for paid family and medical leave.
The U.S. Department of the Treasury has announced that as part of the 2017 Tax Cuts and Jobs Act, eligible employers who provide paid family and medical leave to their employees during tax years 2018 and 2019 may qualify for a new business credit. Retroactive credit could also be available for setting up or updating a leave policy. Agency guidance clarifies how to calculate the credit, including special rules and limitations. Generally, only paid family and medical leave provided to employees whose prior-year compensation was $72,000 or less qualify for the credit.
2. DOL schedules listening sessions on proposed overtime rule.
Five listening sessions have been scheduled on the proposed rule on white-collar overtime exemptions by the DOL, with the first already having taken place, says the Society for Human Resource Management. Listening sessions on the rule, tentatively scheduled for release in January of 2019, are expected to focus on the salary threshold for white-collar exemptions and the frequency for updating the salary threshold.
According to SHRM, employers also are likely to ask that bonuses be included in the calculation of the minimum salary threshold for the overtime exemptions. The final rule isn't expected to take effect till some time in 2020.
3. QSEHRA deadline for 2019 has passed.
The 90-day deadline for submitting a written notice of availability of Qualified Small Employer Health Reimbursement Arrangement to the IRS has passed for this year. Small employers (those with fewer than 50 full-time employees) who do not provide health coverage to employees were enabled instead by the 21st Century Cures Act to reimburse employees for premiums they pay for individual insurance policies.
According to a report on Houston Harbaugh, 2013 guidance from the IRS in Notice 2013-54 ruled that such arrangements violated the market reform provisions of the Affordable Care Act, subjecting employers who did so to excise taxes of $100 per day per employee. While special provisions were made for 2017 and 2018 by the 21st Century Cures Act concerning the requirement for employers to provide a written notice of QSEHRA availability to each eligible employee at least 90 days before the beginning of each year, employers providing QSEHRA for 2019 get no deadline break—and this year it was October 3.
Advertisement
4. Medicare Part D notice deadline imminent.
Plan sponsors who offer Medicare-eligible employees prescription drug coverage, take notice: you must provide notices of whether coverage is creditable (actuarially equivalent to Medicare's standard Part D coverage) or noncreditable (when it does not, on average, provide as much coverage as Medicare's standard Part D coverage).
The Society for Human Resource Management reminds employers that the annual requirement must be provided prior to Medicare's Part D annual enrollment period, which begins October 15. Employees who go at least 63 consecutive days without creditable coverage will end up paying more if they enroll in Medicare Part D at a later date. The requirement is not limited to retirees and their dependents; it also includes Medicare-eligible active employees and their dependents and Medicare-eligible COBRA participants and their dependents.
5. FMLA certification forms, notices valid for three more years.
The Department of Labor, according to SHRM, has extended the validity of Family Medical Leave Act forms to August 31, 2021. No substantive changes have been made to the forms, which include Certification of Health Care Provider for Employee's Serious Health Condition, Form WH-380-E; Certification of Health Care Provider for Family Member's Serious Health Condition, Form WH-380-F; Notice of Eligibility and Rights & Responsibilities, Form WH-381; Designation Notice, Form WH-382; Certification of Qualifying Exigency for Military Family Leave, Form WH-384; Certification for Serious Injury or Illness of Current Servicemember—for Military Family Leave, Form WH-385; and Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave, Form WH-385-V.
6. ACA noncompliance penalties rise in 2018.
Employers who fail to comply with the Affordable Care Act for the 2018 tax year face higher penalties. According to ACA Times, the penalty for the Employer Shared Responsibility Payment for Failure to Offer Minimum Essential Coverage, 4980H(a), rises from $2,260 per employee to $2,320; for Employer Shared Responsibility Payment for Failure to Offer Coverage that Meets Affordability and Minimum Value, 4980(b), from $3,390 per employee to $3,480; for Failure to File from $260 per return to $270; and for Failure to Furnish from $260 per return to $270.
7. ADEA case before Supreme Court.
An age discrimination case being heard by the court questions whether the Age Discrimination in Employment Act applies to public employers with fewer than 20 employees, or only those with 20 or more, as is the case with private employers. According to SHRM, the case of Mount Lemmon Fire District v. Guido, U.S., No. 17-587, questions whether the ADEA applies to all public employers regardless of size, in light of a decision by the 9th U.S. Circuit Court of Appeals; other court decisions have ruled otherwise and stopped at the 20-employee threshold.
8. Arbitration agreements in question.
The Supreme Court is also hearing cases on arbitration agreements. One challenges the applicability of such agreements regarding an employee's right to bring a class-action claim (Lamps Plus Inc. v. Varela, U.S., No. 17-988), after an employee brought a data breach class action against the employer. California law requires that contract ambiguities must be interpreted against the party who drafted the agreement, but the plaintiff seeks that the agreement be interpreted under the FAA and Supreme Court precedent to require individual arbitration.
Another challenges whether arbitration agreements are enforceable against workers who engage in interstate commerce (New Prime Inc. v. Oliveira, U.S., No. 17-340). In the latter instance, there is an exception to the Federal Arbitration Act for "contracts of employment" with such workers, and according to the report, "This case should be of particular interest to any businesses that are in the trucking industry or use independent contractors as drivers."
Advertisement
9. Kavanaugh's presence on the Supreme Court.
In the wake of the battle over the confirmation of Brett Kavanaugh to the Supreme Court, SHRM points out what may be in store for both employers and employees now that he's been seated.
Kavanaugh is expected "to be a strict constructionist, sticking to the text of labor and employment statutes and not expanding workers' rights," says the report, citing John Maley, an attorney with Barnes & Thornburg in Indianapolis. While attorney Mark Phillis with Littler in Pittsburgh is argues that Kavanaugh's rulings on labor and employment don't indicate a bias toward either side, AFL-CIO President Richard Trumka disagrees. In a speech at Yale Law School last month, Trumka said that Kavanaugh "is anything but a neutral," adding that his "confirmation would potentially lock in the pro-corporate tilt of the court for a generation."
10. Equality requirements.
Christopher Olmsted, an attorney with Ogletree Deakins in San Diego says that more gender-equality and pay-equity bills are likely to appear on the docket in days to come. At least in California, where SB 826 is now law, requiring publicly traded California companies to appoint a certain number of women to their boards of directors, other female-friendly measures have passed this year—from legislation on sexual harassment to lactation requirements.
Olmstead told SHRM, "One thing that surprised me this year is that SB 1284, which would have required large employers to report pay-equity data … did not pass in the Legislature." He adds, "In recent years, the Legislature has passed several bills relating to pay equity, and I expected this reporting requirement to be part of the ongoing trend." And considering the number of ways in which California is challenging the status quo, some of these measures may coalesce elsewhere in 2019.
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Marlene Satter
Marlene Y. Satter has worked in and written about the financial industry for decades.
