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Withdrawal Liability Claims: What Employers Should Do to Protect Their Interests
November 12, 2014 WEBCAST
(Practical Law Company)

How Healthy is Your Wellness Program?: Current Litigation and Legal Compliance
November 20, 2014 WEBCAST
(Verrill Dana LLP)

Reporting Employer Health Coverage on Forms 1094 and 1095: A Follow-Up Seminar Based on Your Scenarios
December 4, 2014 WEBCAST
(Thomson Reuters / EBIA)

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New DOL, IRS and HHS FAQ Confirms Employers Can't Pay, Use HRAs to Reimburse Employees for Individual Policy Premiums
" FAQ XXII clarifies that while the Departments' regulations allow more favorable rules for eligibility or reduced premiums or contributions based on an adverse health factor (sometimes referred to as benign discrimination), in the Departments' view, this position does not extend to cash-or-coverage arrangements offered only to employees with a high claims risk. Accordingly, FAQ XXII states such arrangements will violate the nondiscrimination provisions, regardless of whether [1] the cash payment is treated by the employer as pre-tax or post-tax to the employee, [2] the employer is involved in the selection or purchase of any individual market product, or [3] the employee obtains any individual health insurance." (Solutions Law Press)

IRS to Close 'Loophole' on 'Sub-Standard' Plans Without Hospitalization or Physician Services Coverage
"Once this new rule is final, it means that Non-Hospital/Non-Physician Services Plans will not be treated as 'minimum value' plans for premium subsidy purposes or pay-or-play purposes. Therefore, even if individuals have this coverage, they could go to the Marketplace and get a premium tax credit or subsidy. In turn, that could subject an employer to a 'B' penalty (the $3,000 'unaffordable coverage' penalty), as the plan will not provide minimum value. Employers presumably could still avoid the 'A' penalty for failing to offer coverage to at least 95% of full-time employees (70% in 2015)." (Proskauer's ERISA Practice Center)

Health Plans Face November 15 Deadline for Transitional Reinsurance Reporting
"In order to successfully complete the annual reinsurance fee submission, self-insured plan sponsors or their representatives need to: [1] Register on Pay.gov; [2] Fill out the Transitional Reinsurance Form; [3] Attach a supporting documentation file; and [4] Schedule a reinsurance payment ... Within 30 days of submission of the annual enrollment count or by Dec. 15, whichever is later, [HHS] will notify the contributing entity of the reinsurance fee to be paid for the applicable benefit year. Payment is due within 30 days of the date of this notification." (Society for Human Resource Management [SHRM])

Group Health Plans Must Report Number of Individuals Covered by November 17
"If you are an employer that sponsors a self-insured plan, you should check with your third-party administrator to determine whether it will be reporting on your behalf. Even if your third-party administrator is submitting the information, it may ask you to determine the number of lives to be reported.... [F]or this purpose, a 'covered life' is not the relevant number of your employees, but the total number of individuals (including dependents) covered under your plan." (Warner Norcross & Judd LLP)

Employer Questions on Transitional Reinsurance Program (PDF)
"The deadline for submitting the 2014 enrollment count and scheduling the payment dates is November 15, 2014. However, because November 15th is a Saturday, HHS has announced that they will extend the deadline to November 17th. It appears unlikely that the deadline will be extended beyond that date.... HHS will only allow the ACH debit payment method." (Buck Consultants at Xerox)

[Advert.]

Biometrics: Incorporating Health Risk Assessments and Outcome Based Wellness Incentives Into Your Health Plan

November 10 webinar. This live webinar will identify the key issues employers should consider in designing a good biometrics program and explore the major legal issues with a focus on the revised HIPAA wellness plan rules under the ACA. BenefitsLink discount .

Nondiscrimination Rules: An Overview for 2015
"The consequences of failing the nondiscrimination tests vary, but they could have negative tax implications for an employer's most important employees and/or lead to penalties being assessed against the employer. Additionally, misapplying one area of the law will only peak the auditor's interest in what else you may be implementing incorrectly. This paper provides an overview of the nondiscrimination rules that exist for self-insured plans, insured plans, cafeteria plans, and the HIPAA nondiscrimination rules." (Health Care Attorneys P.C.)

Eleventh Circuit Revives Former Employee's Claim That Employment Application Was Rejected Due to Prior FMLA Leave
"Explaining that FMLA retaliation provisions apply to former employees who are rejected for rehire based on past FMLA leave, and finding triable issues on whether a former hospital employee's application was rejected because of a purportedly profane message or because she took FMLA leave while working for a sister hospital, the Eleventh Circuit ... reversed summary judgment on her FMLA claim.... [DOL] regulations extend FMLA protection from retaliation to individuals, not merely employees, who oppose any practice which is unlawful under the FMLA." [ Coleman v. Redmond Park Hospital, LLC , No. 14-10570 (11th Cir. Oct. 23, 2014)] (Wolters Kluwer Law & Business)

How Employers Deal with the Most Outrageous Excuses for FMLA Leave
"[O]utrageous sick leave excuses are a mere phone call away, and ... the holidays are the worst part of the year for fabricated stories about the need for leave. So ... keep these suggestions in mind to ward off employee FMLA abuse: [1] Is the employee requesting leave that may be covered by FMLA? ... [2] Require that employees complete a written leave request form for all absences ... [3] Enforce usual and customary call-in procedures ... [4] Prepare a list of probative questions you ask of all employees when they call in to report an absence ... [5] Use medical certification and recertification to your advantage ... [6] Conduct a comprehensive audit of your FMLA policy, procedures and use of leave[.]" (FMLA Insights)

EEOC Doubles Down, Attacking Employer Wellness Programs
"The court action taken by the EEOC raises a number of issues that may be resolved during the administrative process or in subsequent litigation.... Is HIPAA compliance a safe harbor from ADA litigation? ... Does the ADA benefit plan safe harbor have the meaning afforded to it by the Eleventh Circuit? ... Can GINA be used to undermine HIPAA-compliant wellness programs?" (Seyfarth Shaw LLP)

EEOC Loses First Round in Case That May Chill Employer Wellness Programs
"The high-profile case has already garnered much media attention because it is no secret that employers have been struggling to figure out exactly what are the lawful contours of employee wellness programs that include incentives.... Brian Marcotte, president and CEO of the NBGH, commented, '... The EEOC has had numerous opportunities to provide that guidance but has failed to do so. Their lack of clear guidance, plus the recent legal action, conflicts with the message of HIPAA and the [ACA] which encourages the adoption and expansion of programs that benefit the health of employees and their families.' " [ EEOC v. Honeywell Int'l Inc. , No. 14-cv-04517-ADM-TNL (D. Minn., petition filed Oct. 27, 2014)] (Wolters Kluwer Law & Business)

New Jersey Considering Requirement for Mandatory Paid Sick Leave
"The bills [would] require New Jersey employers to provide one hour of paid sick leave per 30 hours worked for all employees who work in the State. Small employers, defined as those with fewer than 10 employees, will be required to provide 40 hours of paid sick leave per year and allow their employees to carry that time forward for one year. Larger employers, defined as those with more than 10 employees, will be required to provide 72 hours and permit the same carry-forward option. Full-time, part-time and temporary employees (including those provided by a third-party agency) are subject to the headcount calculation." (Wolff & Samson)

NYC to Require Employers to Offer Pretax Transit Benefits in 2016 (PDF)
"The ordinance will require private employers with 20 or more full-time employees in New York City to provide a pretax qualified transportation benefit program for their full-time employees. For these purposes, 'full-time employees' are those who work on average 30 or more hours per week for the employer. Once eligible for the benefit, an employee will remain eligible for the duration of his or her employment with the employer, even if its workforce drops below the 20-employee threshold." (Buck Consultants at Xerox)

Form 941 Correction Process Updated for Additional Medicare Tax
"Clarifications included instructions for correcting taxable wages and tips when an employer failed to withhold the tax in a prior tax year. Instructions for correcting taxable wages and tips for a combination of prior-year incorrect reporting of and failure to withhold the tax also were included." (Bloomberg BNA)

Three Obamacare Changes in Seven Days
"On Friday, Halloween Afternoon: the federal government suspended the Health Plan Identifier registration requirement .... On Election Day: The IRS reversed course on an Obamacare plan calculator ... [Two days later, on November 6], the IRS, HHS and DOL issued a joint FAQ on PPACA and made up a new form of discrimination. Discrimination by giving the person a choice of extra money. Sounds horrible, doesn't it?" (Benefit Revolution)

Thoughts Post-Election: Don't Count on Changes to the ACA Until They Actually Happen
"Changes in control of Congress rarely have an immediate impact on the rules and regulations governing plan administration. Instead, they are more likely to change to focus from one area of law to another. Employers and sponsors would be well served by continuing their present course of ACA compliance efforts instead of hoping for repeal." (Fox Rothschild LLP)

Borzi, ERISA Advisory Council Exchange Updates
"[T]he Council recommended that the DOL 'provide education and outreach to participants and plan sponsors on the considerations and benefits to participants of retaining assets within the employer-sponsored system.' ... Regarding the issue of outsourcing employee benefit services, the Council urged the DOL to educate plan sponsors on current industry practices, including the kinds of services and providers available and common practices for contracting for those services. Additionally, the Council recommended that the DOL clarify the legal framework under ERISA for delegating responsibility to service providers to help minimize confusion about fiduciary liability." (American Society of Pension Professionals & Actuaries [ASPPA])

The Availability of Surcharge as Relief for Individual ERISA Fiduciary Breach Claims
"While some courts have endorsed a broad view of surcharge and allowed a plaintiff to seek monetary recovery for personal loss flowing from a fiduciary breach, the Ninth Circuit concluded that surcharge only applies in cases involving loss to, or unjust enrichment at the expense of, the plan.... The Seventh Circuit, unlike the Ninth Circuit, adopted a broader reading of surcharge ... The Fourth, Fifth, and Eighth Circuits also appear to have at least considered the possibility that surcharge may have a broader application than in cases involving a loss to the trust or unjust enrichment of the fiduciaries at the trust's expense." (Proskauer's ERISA Practice Center)

FASB Commences Project to Improve and Simplify Accounting for Stock Compensation Under ASC Topic 718 (PDF)
"On October 8, 2014 [FASB] added to its agenda a narrow-scope project to improve and simplify accounting for stock compensation under FASB Accounting Standards Codification (ASC) Topic 718. The project is intended to focus on the following six areas: [1] Minimum statutory withholding requirements; [2] Presentation of stock-for-tax withholding transactions on the statement of cash flows; [3] Accounting for forfeitures; [4] Accounting for excess tax benefits and deficiencies; [5] Presentation of excess tax benefits on the statement of cash flows; [and] [6] Simplifications and practical expedients for nonpublic companies[.]" (Frederic W. Cook & Co., Inc.)

Glass Lewis Releases 2015 Policy Guidelines
"The firm has added an area of focus in its discussion on the say-on-pay analysis: The implementation and effectiveness of the company's executive compensation programs including pay mix and use of performance metrics in determining pay levels ... The firm does not believe one-off awards are generally in shareholders' best interest ... Glass Lewis is generally in favor of ESPPs and in most cases will support plans up to a purchase limit of $25,000 per employee per year[.]" (Steven Hall & Partners)

New Surprises in Final 2015 ISS Policy Updates
"ISS is adopting a 'scorecard' model which it calls the Equity Plan Scorecard, or EPSC, that considers a range of positive and negative factors, rather than a series of 'pass' or 'fail' tests, to evaluate equity incentive plan proposals.... EPSC factors will fall under three categories: Plan Cost, Plan Features, and Grant Practices ... ISS will generally recommend a vote against the plan proposal if the combination of above factors indicates that the plan is not, overall, in shareholders' interests[.]" (Dodd-Frank.com, a blog by Stinson Leonard Street)

DOL Achieves Restoration of Nearly $2M in Health Benefits for Welfare Benefit Plan Clients of Cox Enterprises Inc. Employee Benefits Security Administration [EBSA], U.S. Department of Labor

Frenkel Benefits, LLC Announces Acquisition of The Moyer Group Frenkel Benefits, LLC

Principal Financial Group to Acquire AXA?s Hong Kong Pension Business Principal Financial Group

Social Security Advisory Board Appoints Expert Panel to Review Assumptions and Methods used by Social Security Trustees Social Security Advisory Board

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