Welcome to part 6 of the Affordable Care Act Series!  Today I’ll be discussing several of the additional provisions that applicable large employers should be aware of.  They’re in no particular order.

1. Offer of Coverage

If an applicable large employer fails to offer coverage to a full-time employee for any day of a calendar month during which the employee was employed by the employer, the employee is treated as not being offered coverage during that entire month.  The regulations do not provide guidance to employers for demonstrating that an offer of coverage was made to an employee so recordkeeping should be up to date.

If an employee has not been offered an effective opportunity to accept coverage, the employee will not be treated as having been offered coverage.  In addition, the employee must have an effective opportunity to decline an offer of coverage that is not minimum value coverage or that is not affordable – an employer cannot make an employee ineligible for a premium tax credit by providing the employee with mandatory coverage (coverage which the employee has not had an opportunity to decline) that does not meet minimum value.

2. Offer of Coverage in the Case of Nonpayment or Late Payment Premiums

If an employee’s insurance payment is billed, rather than withheld (which may occur in the case of tipped employees) and the payment is late or not made, the employer is not required to provide coverage for the period for which the premium is not timely made.  The employer is treated as having offered that employee coverage for the remainder of the coverage period (typically the remainder of the plan year).

3. Failure to Offer Coverage to a Limited Number of Full-Time Employees Due to Error – What Happens?

A penalty will not be applied to an employer that intends to offer coverage to all of its full-time employees, but fails to offer coverage to a few full-time employees as long as the employer’s offer reaches at least 95% of employees being covered.  An “applicable large employer” will be treated as offering coverage to its full-time employees and their (non-spousal) dependents for a calendar month if, for that month, it offers coverage to all but the greater of 5% or 5 of its full-time employees.  The alternative margin of 5 full-time employees, and their dependents, (if greater than 5% of full-time employees) is designed to accommodate smaller covered employers that may not offer coverage to a few full-time employees.

4. Turn Full-Time Positions into Part-Time Positions?  Potential ERISA Penalties/Liability for Interference with Plan Benefits

Some employers may be tempted to avoid coverage under the ACA by eliminating full-time positions and transferring the duties of those positions to newly created part-time positions offered to the prior full-time employees. It should be noted, however, that Section 510 of ERISA, 29 U.S.C. § 1140, makes it unlawful for any person to “interfere with the  attainment of any right to which such participant may become entitled under the plan,” or to “discriminate against a plan participant or beneficiary, for exercising rights provided by an employee benefit plan.”

It is possible that employees who lose coverage based on job restructuring designed to affect coverage under the ACA could assert claims under ERISA Sec 510.

 5. Assessment and Payment of Liability

Although there isn’t much guidance yet on how the assessments will be billed, they will be payable upon notice and demand.  Regulations will be forthcoming to explain how employers will receive notice that one or more employees received a premium tax credit or cost-sharing reduction and are provided with the opportunity to respond before notice and demand for payment.  According to the current information from the IRS, employers will not be required to make the employer shared responsibility payment on their tax return.

6. Transition Rules – Relief from Penalty for Employers with Fiscal Year Plan Years

If an applicable large employer maintained a fiscal year plan as of December 27, 2012, relief applies with respect to employees of the employer who would be eligible for coverage as of the first day of the first fiscal year of that plan that begins in 2014.  If the employee is offered affordable, minimum value coverage no later than the first day of the 2014 plan year, no penalty will be due for that employee for the period prior to the first day of the 2014 plan year.

7. Coverage for Dependents

Health care plans now require “dependent” coverage however, spouses are excluded from the definition of “dependents.”  Any employer that takes steps during the plan years that begin in 2014 toward satisfying this provision relating to offering of coverage to full-time employees’ dependents will not be liable for any penalties solely on account of a failure to offer coverage to the dependents for that plan year.

 8. Automatic Enrollment for Larger Employers

Section 18A of the FLSA (added by section 1511 of the Act) requires employers that have more than 200 full-time employees and to which the FLSA applies to automatically enroll new full-time employees in one of the employer’s health benefit plans (subject to any waiting period authorized by law) and continue to enroll current employees in a health benefits plan offered through the employer.  18A also requires adequate notice and the opportunity for an employee to opt out of any coverage in which the employee was automatically enrolled.

These are simply some of the additional provisions of which employers should be aware.  The next blog entry will discuss the Act’s effect on small business.

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Beginning in 2014, an applicable large employer can be assessed a penalty if at least one of its full-time employees is certified to receive an “applicable premium tax credit” or “cost-sharing reduction” and the applicable large employer failed to offer its full-time employees and their (non-spousal) dependents the opportunity to enroll in affordable minimum essential coverage.

Large businesses may be assessed penalties in any month that:

1.         The employer does not offer its full-time employees (and their non-spousal dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan; OR

2.         The employer offers its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan but he plan is either (a) unaffordable relative to an employee’s income or    (b) does not provide minimum value.

Beginning on January 1, 2014, the “Play or Pay” provisions become applicable and an employer may be accessed penalties for noncompliance. An applicable large employer not offering minimum essential coverage (the non-coverage penalty) is subject to a penalty in any month that any of its full-time employees received a premium tax credit.  The monthly penalty assessed will be equal to the number of full-time employees, minus 30, multiplied by 1/12 of $2,000 for each applicable month.  The first 30 full-time workers are excluded from the calculation.

There is also a penalty for applicable large employers offering coverage that is non-compliant with the Act.  Employers offering health coverage will be subject to a penalty if at least one full-time employee obtains a premium tax credit in an exchange plan because (1) the employee’s required contribution for self-only coverage exceeds 9.5% of the employee’s W-2 income (not affordable) OR (2) if the plan offered pays less than 60% of covered expenses (doesn’t meet minimum value requirements). The monthly penalty assessed to the employer for each full-time employee who receives a premium tax credit is 1/12 of $3,000 for each applicable month, but total amount of this “Non-Compliant Coverage” penalty is “capped” or limited to the total number of the firm’s full-time employees, minus 30, multiplied by 1/12 of $2,000 for any applicable month.  Employers with more than 200 full-time employees that offer coverage must automatically enroll new full-time employees in a plan.

The following examples demonstrate how a penalty may be accessed.

Example 1- An applicable large employer does not offer coverage, but no full-time employees receive premium tax credits for exchange coverage.   No penalty.

Example 2 – An employer has 55 employees.  The employer does not offer coverage and an employee receives a premium tax credit.  Penalty?  Yes, the annual penalty is the number of full-time employees minus 30, times $2,000.  In this example the penalty wouldn’t vary if only one employee or all 55 employees received the credit; the employer’s annual penalty in 2014 would be (55-30) times $2,000 or $50,000.

Example 3 – An applicable large employer offers coverage and no full-time employees receive credits for exchange coverage. Penalty?   No, there’s no credit to off-set.

Example 4 – An applicable large employer with 55 employees offers non-compliant coverage, and one or more full-time employees receive credits for exchange coverage.  The number of full-time employees who receive the credit is used to calculate the penalty, which will be the lesser of:

1. The number of full-time employees minus 30, multiplied by $2,000 – or $50,000 for the employer with 55 full-time employees (55 minus 30, multiplied by $2,000). OR

2. The number of full-time employees who receive credits for exchange coverage, multiplied by $3,000.

Employers must remember that, unlike employer contributions to health insurance premiums, these penalties are not tax deductible. Further, if an employer decides to stop offering insurance, the amounts that had previously been deducted from wages for the employees’ portion of the premiums will now become subject to employer FICA contributions.

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I’m not going to lie.  The IRS safe harbor for employers to use to help prevent penalties for noncompliance is somewhat convoluted.  I’ve tried to make this as readable as possible.

So let’s jump right in.  The IRS has offered a safe harbor for applicable large employers to use to ensure that the right employees (full-time) are receiving coverage.  It’s important to note that all employees considered full-time under the Act must be offered coverage if the employer is an applicable large employer.  So an employer might only have ten employees who are actually full-time (30 hours per week) but have an additional 40+ “full-time equivalent” employees based upon the number of hours all of the part-time employees are working therefore making the employer an “applicable large employer” and subject to the Act.  All of these part-time hours, divided by 120, equals the number of full-time equivalent employees that an employer has (see my previous post here).

Safe Harbor for Ongoing Employees

The safe harbor to be applied for ongoing employees is called the “look-back method.”  Even though the final regulations have not been published yet, the IRS has stated that employers can rely on the safe harbor through 2014.  An employer determines each ongoing employee’s full-time status by “looking back” at a “standard measurement period” which is a defined period of time of not less than three months but not more than twelve consecutive months.  An ongoing employee is defined as an employee who has been employed by an applicable large employer for at least one complete standard measurement period.  The time period is chosen by the employer and may or may not be the calendar year.

If the employer determines that an employee averaged at least 30 hours per week during the standard measurement period, then the employer treats the employee as full-time during the subsequent “stability period,” regardless of the employee’s number of hours during the stability period (as long as the person remained an employee).  For employees whom the employer determine are full-time during the standard measurement period, the stability period is a period of at least six consecutive months that is no shorter in duration than the standard measurement period and that begins after the standard measurement period.

If the employee is determined not to have worked full-time during the standard measurement period, the employer may treat the employee as a non-full-time employee during the subsequent stability period.  This stability period cannot be longer than the standard measurement period.

The “standard measurement period” must be made on a consistent basis for all employees in that same category.  Categories include (1) each group of collectively bargained employees covered by a separate collective bargaining agreement; (2) collectively bargained employees and non-collectively bargained employees; (3) salaried employees and hourly employees and (4) employees whose primary places of employment are in different states.

Employers may also use a period of time called the “administrative period” between the standard measurement period and the stability period.  This is a period of time (up to 90 days) for employers to determine which ongoing employees are eligible for coverage. It cannot lengthen the time of the measurement period or the stability period.

If an ongoing employee’s position of employment or other employment status changes before the end of a stability period, the change will not affect the application of the classification of the employee as a full-time employee (or not a full-time employee) for the remaining portion of the stability period.  So if an ongoing employee is not treated as a full-time employee during a stability period because the hours during the prior measurement period were insufficient for full-time-employee treatment, and the employee changes his or her position of employment that increases the hours of service, the employee remains treated as a non-full-time employee and does not need to be offered coverage.

Here is a simple example of employer use of a measurement/stability period:                                          

            Employer M, an applicable large employer, did not hire any new employees in calendar year 2014.  Employer M elects to use a 6-month measurement period and a 6-month stability period for purposes of determining its full-time employees. The first measurement period runs from January 1, 2014 through June 30, 2014 and the associated stability period runs from July 1, 2014 through December 31, 2014.

Employer M determines each employee’s full-time status by looking back to determine whether the employee averaged at least 30 hours of service per week from January 1, 2014 through June 30, 2014 by totaling each employee’s hours of service during that measurement period and dividing that total by the number of weeks in that measurement period.

The employees determined to be full-time based on their hours of service during the first measurement period are considered to be full-time for each month in the stability period from July 1, 2014 through December 31, 2014 and must be offered coverage.                

There are many more examples in the IRS temporary regulations but for purposes of this blog, I’m trying not to go into too much detail.   It’s also important to understand that in using the measurement/stability period process, once a measurement period occurs and a stability period begins, the first stability period and the second measurement period are necessarily occurring at the same time in order for there to be continual coverage.  There can’t be a measurement period, then a stability period and then a second measurement period during which no coverage is offered to full-time employees (during the second measurement period) – measurement periods and stability periods overlap.

Safe Harbor for New Employees

The following rule for new employees may be modified in the final regulations, but can be relied on by employers through 2014 even if the final regulations modify the rule. A “new employee” defined as an employee who has been employed by an applicable large employer for less than one complete standard measurement period.

The basic rule is that an employee that is reasonably expected to work full-time (average 30 hours of service per week and who is not a seasonal employee) must be offered coverage within 3 months of starting.  If an employer offers coverage to the employee at or before the conclusion of the initial three months of employment the employer will not be subject to the employer responsibility payment (penalty).

The first standard measurement period is called the “initial measurement period”.  It’s a time period selected by an applicable large employer of at least 3 consecutive calendar months but not more than 12 consecutive calendar months used by the applicable large employer as part of the process of determining whether certain new employees are full-time employees under the look-back measurement method.

Safe Harbor for Variable Hour and Seasonal Employees

The following rule for variable hour and seasonal employees may also be modified in the final regulations, but can be relied on by employers through 2014 even if modified.  A new employee is a “variable hour” employee if, based on the facts and circumstances at the start date, it cannot be determined that the employee is reasonably expected to work, on average, at least 30 hours per week.

A new employee who is expected to work initially at least 30 hours per week may be a variable hour employee if, based on the circumstances at the start date, the period of employment at more than 30 hours per week is expected to be of limited duration and it cannot be determined that the employee is to work an average of 30 hours per week over the initial measurement period.   (Example – a retail worker during the holidays may work over 30 hours per week but this won’t continue during the initial measurement period past the holidays).

If a large employer uses the Look-back Measurement method for its ongoing employees, it may use it for new variable hour and for seasonal employees.  During the initial measurement period of between three and twelve months, the employer measures the hours of service for the new variable or seasonal employee and determines whether the person is employed an average of 30 hours per week or more.  The stability period length used must be the same used for ongoing employees.

If the employee is determined to be full-time during the initial measurement period, the stability period must be a period of least six consecutive calendar months that is no shorter in duration than the initial measurement period and must begin immediately after the initial measurement period.  That employee must be covered during the stability period if it was found, during the initial measurement period, that the employee is a full-time employee.

If a new variable hour or seasonal employee is determined not to be full-time during the initial measurement period, the employee may be treated as a non-full-time during the following stability period.  The stability period for variable hour and seasonal employees determined not to be full-time must not be more than one month longer than the initial measurement period.

Next week I will write a post on the potential penalties employers face, a much more straight-forward topic.

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Believe it or not, it’ll be fairly complicated for some employers to determine if they’re an “applicable large employer” under the Act and will therefore face penalties if they don’t  provide minimum essential coverage or do provide minimum essential coverage but that coverage is either unaffordable or doesn’t provide minimum value.

An applicable large employer is “an employer that employed an average of at least 50 full-time employees (taking into account full-time equivalents) on business days during the preceding calendar year.” In determining how many full-time employees an employer has, part-time employees’ hours are considered in the calculation. Part-time employees’ hours are computed on a monthly basis, by taking the total number of part-time monthly hours worked divided by 120 (which would be the equivalent of one full-time employee, or 30 hours per week).  A “full-time employee” is someone who works 30 or more hours per week and the number of full-time employees excludes the full-time seasonal employees who work for less than 120 days during the year.

For an employee to even be considered in the calculation of employees, an employment relationship must exist.  An employment relationship exists between an employer and an individual “when the person for whom the services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the detail and means by which that result is accomplished.”

If an employment relationship exists, the employer must calculate that individual’s hours into the calculation of the number of employees.  In order to determine how many full-time employees an employer has, the employer must take into account the hours of service for all employees in the prior year, both full-time and part-time.

The key issue in determining how many employees an employer has is to determine what type of employee each employee is (believe it or not, the IRS needed 18 pages to define the term “full-time employee” under the Act in IRS Notice 2012-58.)   First, how many full-time employees does an employer have?  A full-time employee is an employee that works, on average, 30 or more hours per week OR an employer may choose to treat 130 hours of service in a month as the equivalent of 30 hours of service per week in the month.

Second, how many “full-time equivalent” (FTE) employees does an employer have?  This is a combination of employees, each of whom individually is not treated as a full-time employee because he or she is not employed on average at least 30 hours of service per week.  These employees, in combination, are counted as the equivalent of full-time employees solely for purposes of determining whether the employee is an applicable large employer.  The employer must calculate the number of FTEs it employed during the           preceding calendar year and each FTE is considered one full-time employee  

The number of FTEs for each calendar month in the preceding calendar year would be determined using the following steps:

(1) Calculate the aggregate number of hours of service (but not more than 120 hours of service for any employee) for all employees who were not full-time employees for that month (employed at least 30 hours).

(2) Divide the total hours of service in step (1) by 120. This is the number of FTEs for the calendar month.

Therefore, to determine the number of full-time employees an employer has and if it might be accessed as penalty as an “applicable large employer” under the Act, the employer must count the number of full-time employees and FTEs.  For example, say a Company has 35 full-time employees (they each work 30+ hours per week).  In addition, the company has 20 part-time employees who all work 24 hours per week for a total of 96 hours each.  These part-time employees’ hours would be treated as the equivalent of 16 full-time employees for that month, based on the following calculation: 20 employees x 96 hours / 120 = 16 full-time equivalents.

All employees (including seasonal) who were not full-time employees for any month in the preceding calendar year are including in calculating the employer’s FTEs for that month.  Note that if an employer has over 50 full-time employees for 120 days or fewer during a calendar year, AND the employees in excess of 50 who were employed during that period of no more than 120 days were seasonal employees, the employer would not be an applicable large employer (the “seasonal employee exception”).

How an employer calculates an employee’s hours worked is also relevant because not all employees are hourly workers.  For employees working on an hourly basis the employer is required to calculate actual hours of service for records of hours worked and hours for which payment is due (this includes hours for which an employee is entitled to be paid such as holidays, vacation and illness).

There are three methods for calculating the hours for non-hourly employees and employers need not choose the same method for every employee.

First the employer can count the actual hours of service from records of hours worked and hours for which payment is made or due for vacation, holiday, illness, etc.

Second, the employer can use a days-worked equivalency method whereby the employee is credited with eight hours of service for each         day for which the employee would be required to be credited with at least one hour of service.

Third, the employer can use a weeks-worked equivalency of 40 hours of service per week for each week for which the employee would be required to be credited with at least one hour of service.

Note that an employer may not use a method that would understate the hours worked.  For example, an employer isn’t permitted to use the days-worked equivalency method for an employee who works three ten hour days per week because this method would understate the employee’s hours of service as being 24 hours of service per week, which would result in the employee being treated as not a full-time employee.

Putting it all together

In order to determine the number of full-time employees in the preceding calendar year (and therefore whether an employer is a large employer under the Act for the current calendar year), following the following steps:

STEP 1 – Calculate the number of full-time employees you have (including seasonal employees) for each calendar month in the preceding calendar year.

STEP 2 – Calculate the number of FTEs (including seasonal employees) for each calendar month in the preceding calendar year.

STEP 3 – Add the number of full- time employees and FTEs calculated in steps (1) and (2) for each of the 12 months in the preceding calendar year.

STEP 4 – Add up the 12 monthly numbers in step (3) and divide the sum by 12.  This is the average number of employer’s full-time employees for the preceding calendar year (remember to round down fractions).

STEP 5 – If the number of full-time employees in step (4) is less than 50, the employer is not an applicable large employer for the calendar year.

STEP 6 – If the number of full time employees in step (4) is 50 or more, determine whether the seasonal employee exception applies (as described above).  If the seasonal exception applies, the employer is not an applicable large employer for the current calendar year.  If the seasonal exception does not apply, the employer is an applicable large employer for the current calendar year.

More on this voluminous piece of legislation next week!

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Last week I wrote a blog entry on the basics of the Affordable Care Act and some definitions that individuals should be familiar with when reading about the Act.  Remember that effective on January 1, 2014, the Act states than an “applicable large employer” is liable for an assessment payment if any of its full-time employees (averaging 30 or more hours per week) is certified to receive an applicable premium tax credit or cost-sharing reduction and either:

(1) the employer fails to offer to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage (MEC) under an eligible employer-sponsored plan; OR

(2) the employer offers its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan that, with respect to a full-time employee who has been certified to receive a tax credit or cost-sharing reduction, is either (i) unaffordable or (ii) does not provide minimum value.

As a reminder, “Minimum essential coverage” is coverage under a government-sponsored program; coverage under an employer-sponsored plan; plans in the individual market or other plans under § 5000A(f) of the Act.  “Minimum value” states that a health plan must pay at least 60% of the covered health expenses for an individual.

A plan must also be “affordable” (an employee’s share of the health plan premium for “employee only” coverage does not exceed 9.5% of the employee’s gross income for the taxable year) so the IRS has created three safe harbors for an employer to use to determine what’s considered “affordable”.

The first affordability safe harbor is the W-2 Safe Harbor.  For this option, affordability is determined by reference to an employee’s wages from the employer.  Employers can use what is reported in Box 1 of Form W-2.  To use this safe harbor the employer needs to meet the following requirements: (1) the employer must offer its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan and (2) that the employee portion of the self-only premium for the employer’s lowest cost coverage that provides minimum value (the employee contribution) must not exceed 9.5% of the employee’s W-2 wages.

If the W-2 safe harbor is followed, no assessment payment will be due with respect to that employee even if that employee received a premium tax credit or cost sharing reduction.   Application of this safe harbor will be determined after the end of the calendar year and on an employee-by-employee basis taking into account W-2 wages and the employee’s contribution.

For example, the employer would determine whether it met the affordability safe harbor for 2014 for an employee by looking at that employee’s W-2 wages for 2014 and comparing 9.5% of that amount to the employee’s 2014 employee contribution.  The safe harbor would apply only for purposes of determining whether an employer’s coverage satisfies the 9.5% affordability test for purposes of the assessment payment (penalty); the safe harbor does not affect an employee’s eligibility for a premium tax credit.

For an employee who was not a full-time employee for the entire calendar year, the Form W-2 safe harbor is applied by adjusting the employee’s Form W-2 wages to reflect the period when the employee was offered coverage and then comparing those adjusted wages to the employee share of the premium during the period.

The second option is the “rate of pay” safe harbor.  The employer may (1) take the hourly rate of pay for each hourly employee who is eligible to participate in the health plan as of the beginning of the plan year; (2) multiply that rate by 130 hours per month (full-time status under § 4980H) and (3) determine affordability based on the resulting monthly wage amount.  The employee’s monthly contribution amount (for the self-only premium of the employer’s lowest cost coverage that provides minimum value) is affordable if it is equal to or lower than 9.5 percent of the computed monthly wages (the employee’s applicable hourly rate of pay x 130 hours).  For salaried employees, monthly salary would be used instead of hourly salary multiplied by 130.

An employer can use the rate of pay safe harbor if, with respect to the employees for whom it uses the safe harbor, the employer did not reduce the hourly wages of hourly employees or the monthly wages of salaried employees during the year.

The third and final sale harbor is the “poverty line safe harbor.” Employer-provided coverage offered to an employee is affordable if the employee’s cost for self-only coverage under the plan does not exceed 9.5% of the Federal Poverty Level for a single individual.  Employers must use the most recently published poverty guidelines as of the first day of the plan year of the applicable large employer member’s health plan.  This option was created in response to comments that determination of affordability should disregard employees whose income would qualify the employee for coverage under Medicaid.

The W-2 safe harbor is probably the easiest to follow.  Employers have the employee’s W-2 information and can easily determine whether or not its coverage is deemed “affordable” under the Act.

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No matter your feelings on the Affordable Care Act, it’s coming whether you’re ready or not so I’ve decided to write a series on blog entries on the Act.  Compliance will be a work-in-progress as businesses determine how to best implement strategies to ensure that penalties aren’t assessed.

The IRS, the Department of Labor and other agencies have published guidance on how the Act will be implemented, from the penalties accessed to the insurance exchanges slated to open on October 1, 2013.  I’ve read a lot of these (I think I’m one of the few who enjoys reading tax regulations) and hope to peak your interest on a timely topic affecting employers.  This post will offer some basic background information.

The Affordable Care Act (or officially, the Patient Protection and Affordable Care Act) was enacted on March 23, 2010 and is over 900(!) pages long.  Effective on January 1, 2014, the Act requires than an “applicable large employer” is liable for an assessment payment if any of its full-time employees (averaging 30 or more hours per week) is certified to receive an applicable premium tax credit or cost-sharing reduction and either:

(1)       the employer fails to offer to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage (MEC) under an eligible employer-sponsored plan;

(2)        the employer offers its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan that, with respect to a full-time employee who has been certified to receive a tax credit or cost-sharing reduction, is either (i) unaffordable or (ii) does not provide minimum value.

Understanding the key terms used in the Act is obviously important.  While the terms may be described in more detail in the Act, at a basic level, the key terms can be defined as the following:

1.         Affordable – An employee’s share of the health plan premium for “employee only” coverage does not exceed 9.5% of the employee’s W-2 income for the taxable year

2.         Minimum essential coverage – Under § 5000A(f) of the Act, it can mean coverage under a government-sponsored program; coverage under an employer-sponsored plan; plans in the individual market; grandfathered plans and others

3.         Minimum value – the health plan must pay at least 60% of the covered health expenses for an individual

4.         Premium tax credit – A subsidy for people with income up to 400% of the federal poverty level to enroll in insurance through an Affordable Insurance Exchange.

To qualify for a premium tax credit you cannot be eligible for coverage through a government-sponsored program like Medicaid and you cannot be eligible for coverage offered by an employer (or are eligible only for employer coverage that is unaffordable or that does not provide minimum value.)

5.         Cost-Sharing – Defined as any contribution consumers make towards the cost of their healthcare as defined in their health insurance policy.  (An insurer can reduce the cost-sharing (under certain plans defined in § 1402 of the Act) of an eligible insured enrolled in a qualified health plan.)  An “eligible insured” is an individual who enrolls in a qualified health plan in the silver level of coverage (I’ll explain in a future blog entry) in the individual market offered through an Exchange AND whose household income exceeds 100 percent but does not exceed 400 percent of the poverty line for a family of the size involved.

6.         Assessment payment – “shared responsibility payment” or penalty

7.         Insurance exchange – An online marketplace where insurers offer individuals and small businesses health care plans with varying coverage.

8.         Qualified health plan – A health plan certified to be offered through an Exchange.

If a business, by 2014, does not provide full-time employees with affordable, minimum essential health coverage and at least one employee receives a premium tax credit for a federal or state insurance exchange, the employer may be liable for a penalty.

In future posts I will explain the affordability safe-harbors that employers may use to determine if the coverage is “affordable” under the Act; how to determine if you’re an “applicable large employer” and the safe harbor that businesses can apply; the potential penalties under the Act; other provisions applicable to large employers under the Act; the Act and its effect on small businesses; the excise tax on “Cadillac plans” and the insurance exchanges set to open in October.

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On January 25, 2013, the D.C. Circuit Court of Appeals invalidated three “recess” appointments that President Obama made to the National Labor Relations Board on January 4, 2012. The court held that such recess appointments can only be made during intersession recesses that occur between the extended sessions of Congress, and not, as President Obama attempted with the three NLRB appointees, during recesses in the middle of a session of the Senate.

Because the U.S. Supreme Court ruled just two years ago that the five-member NLRB cannot act on issues absent a quorum, (and the participation of illegally appointed members does not provide a quorum) the D.C. Circuit ruling, if upheld, will arguably invalidate decisions in over 300 cases heard by, and several administrative rules promulgated by the NLRB over the last year, including many that adversely affected non-union employers:

a)   The NLRB’s “quickie election” proposal that would shorten the timeframe for union elections and limit challenges to bargaining unit composition;

b)   Proposal to force employers to bargain with “micro-units” that represent narrow groups of workers within a company (even workers of a single job title);

c)   Limiting employees’ rights to not fund political activities by preventing workers from viewing auditors reports of union spending and by classifying lobbying expenses as “representational activities”;

d)   Restricting employers’ ability to end payroll dues deductions when a collective bargaining agreement expires;

e)   Restricting employers’ ability to limit off-duty access to a workplace– thus expanding access for union organizers;

f)   Narrowing the definition of supervisors (who cannot be unionized) to expand the number of employees unions can organize;

g)   Expanding the definition of “concerted activity” to include public complaints about an employer in social media, and to preclude rules requiring that employees refrain from discussing investigations;

h)   Asserting NLRB jurisdiction over public charter schools;

i)    Requiring employers to give unions copies of sworn witness statements in investigations into workplace misconduct, chilling the ability of employees to speak freely without fear of repercussions.

The 2013 Labor & Employment Law Update Seminar will address the impacts of these decisions as well as the impact of their potential reversal as a result of the D.C. Circuit ruling.  Please click on http://www.petriestocking.com/images/stories/2013Roadshow.pdf for the seminar content as well as dates and locations.

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The dates and locations for the 2013 Labor & Employment Law Update Seminar, presented by Attorney David McClurg, have been decided!  Please join us for one of the following dates:

Madison – Thursday, February 28, 2013

La Crosse – Friday, March 1, 2013

Ashland – Wednesday, March 13, 2013

Eau Claire – Thursday, March 14, 2013

Milwaukee – Tuesday, March 26, 2013

Green Bay – Wednesday, March 27, 2013

The following topics will be covered:

1.        Affordable Care Act Implementation – Risks and Opportunities

Learn which parts of the flood of new regulations affect your business operations, policies and tax liabilities, and obtain critical information in order to avoid penalties under the Act. You need to know how the development of Health Care Exchanges will impact your current and future health plans and the size of businesses that are affected by the ACA and its implementing regulations.

2.        Defenses to Unemployment Claims

Unemployment contributions and surcharges are high enough without increases due to spurious and unjustified claims.  Learn about decisions broadening the “misconduct” defense in connection with chronic tardiness and absenteeism, drug use, and chronic poor job performance, and your ability to use employee theft as a sword against terminated employees as well as a shield against unemployment claims, along with other ways to minimize your UI exposure.

3.        Increased NLRB Pressure on Non-Union Employers

Now that the constraints of the 2012 elections have been removed, Obama’s appointees to the National Labor Relations Board are expected to push their employee friendly agenda even harder.  Learn the new exposures that employers face under the NLRB’s ever expanding vision of “concerted protected activity” and the Board’s relentless efforts to promote unionization, including quickie elections, “micro-units”, and restrictions on pre-election hearings.

4.        Criminal Background Checks

Learn why background checks are important, and the pitfalls to avoid in conducting them, including compliance requirements under the Fair Credit Reporting Act, the Wisconsin Fair Employment Act and Title VII discrimination provisions. The EEOC is aggressively cracking down on policies that screen out individuals with criminal records. Learn how the EEOC’s new guidance compares with Wisconsin law on arrest and conviction record discrimination.

5.        Developments in Discrimination/Retaliation/Harassment Claims

Learn about developing liability theories and enforcement trends relating to discrimination, retaliation and harassment claims, and strategies to avoid pattern and practice and class action claims.

6.        Legislative and Case Law Update

Learn about recent legislative and case law developments on critical Human Resource issues relating to Wage and Hour claims, Act 10, Paid Sick Leave and many more.

The cost is $250.00 per person if received on or before Janury 28, 2013 and $290 per person after January 28, 2013.  Please contact Bethani Daoust at (414) 276-2850 for more information.

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Did you know that employers in Wisconsin are required to give their employees time off to vote?

Wis. Stat. Ann. § 6.76 states that “any person entitled to vote at an election is entitled to be absent from work while the polls are open for a period not to exceed 3 successive hours to vote.”

The statute, however, does require that the employee notify the employer before election day of their intended absence and the employer may choose the time of day for the absence.  The only “penalty” permitted is a deduction in pay for the time lost.  The statute applies to all state employees as well.

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