Many of our members are wondering what’s next with Obamacare? In fact, the DOL has done a decent job of posting info. Problem is you need a lawyer to translate much of it. Stay tuned as our team will be bringing on additional webinar guests and tools to help our growing membership manage this challenge. Your benefits brokers should also be stepping up to the plate with some strategic guidance. Understand this: The DOL doesn’t have it all together yet. They are noodling with the regs that kick in in 2014. It is very clear to me the most impacted employers will be those with many low wage earners. Stay tuned!

The DOL has issued a Guidebook for Employers on the Equal Pay Act. Part of the agency’s agenda is to step up its enforcement of the law.

The Department of Labor’s Employee Benefits Security Administration has updated its website with the following:

• Summary of Benefits and Coverage and Uniform Glossary
  • Final Regulations, available at www.dol.gov/ebsa/pdf/SBCfinalreg.pdf
  • Compliance Guide, available at www.dol.gov/ebsa/pdf/SBCguidance.pdf
  • Summary of Benefits and Coverage Template, available at   www.dol.gov/ebsa/pdf/SBCtemplate.pdf
  • Sample Completed SBC, available at www.dol.gov/ebsa/pdf/SBCSampleCompleted.pdf
  • Instructions for Completing the SBC – Group Health Plan Coverage, available at www.dol.gov/ebsa/pdf/SBCInstructionsGroup.pdf
  • Instructions for Completing the SBC – Individual Health Insurance Coverage, available at www.dol.gov/ebsa/pdf/SBCInstructionsIndividual.pdf  
  • Why This Matters language for “Yes” Answers, available at www.dol.gov/ebsa/pdf/SBCYesAnswers.pdf
  • Why This Matters language for “No” Answers, available at www.dol.gov/ebsa/pdf/SBCNoAnswers.pdf
  • HHS Information for Simulating Coverage Examples, available at http://cciio.cms.gov/resources/other/index.html#sbcug
  • Uniform Glossary of Coverage and Medical Terms, available at www.dol.gov/ebsa/pdf/SBCUniformGlossary.pdf
•  Automatic Enrollment, Employer Shared Responsibility and Waiting Periods

Technical Release 2012-01, available at http://www.dol.gov/ebsa/newsroom/tr12-01.html

Below is an amazing DOL news release. It is the first “reverse discrimination” case I’ve seen where an employer was sued by both Black and White employees because it preferred Hispanic workers. I wonder what the management justification was? Maybe because they cost less and work harder? Why else would they be preferred? There is no claim that they were illegal. If you look at their management directory it seems “balanced” for a Texas workforce. I can tell you now that this is just the beginning of a compliance trend. Many low wage paying employers prefer the work ethic and cost of Hispanic workers. It’s a fact, Jack. Just like new immigrant cultures were preferred 1800’s manufacturing plants. And 1970’s LA sweatshops. Problem is we are addressing the symptom, not the cause. The law will never be able to create a cultural shift in work ethic or cost. Sure we can mandate tolerance but what more?  I expect unions and competing employers will push for more cases like this, especially where federal dollars are concerned.

Agreement includes $219,000 in back wages and interest for 69 African-American and Caucasian applicants plus job offers for some

HOUSTON —The U.S. Department of Labor’s Office of Federal Contract Compliance Programs today announced that government contractor JacintoPort International LLC has agreed to settle allegations of hiring discrimination on the basis of race involving 48 African-American and 21 Caucasian job applicants who were rejected for longshoreman positions at the company’s cargo facility in Houston.

“In this day and age, it is shocking that any company would allow race to be a factor in determining who gets hired,” said OFCCP Director Patricia A. Shiu. “This settlement should put all federal contractors on notice that, in the Obama administration, we will be persistent when it comes to rooting out workplace discrimination and will vigilantly monitor employers who violate the law until they get it right.”
 
OFCCP previously cited JacintoPort for violating requirements of Executive Order 11246 by failing to implement an applicant tracking system for new hires, and to develop and execute action-oriented programs to recruit women and African-Americans. That matter was settled on June 6, 2006, with a conciliation document in which JacintoPort agreed to correct the violations and produce semiannual reports on the company’s progress in employing women and minorities.

In reviewing those progress reports, OFCCP investigators found that the company was giving preferential treatment to Latino applicants and systematically discriminating against African-Americans and Caucasians seeking longshoreman jobs. Under the terms of the latest conciliation agreement, JacintoPort will pay $219,000 in back wages and interest to the affected individuals, and make 17 job offers to members of the original class as longshoreman positions become available. In addition, JacintoPort has agreed to undertake extensive self-monitoring measures to ensure that all hiring practices fully comply with the law, including record-keeping requirements.

JacintoPort, a wholly-owned subsidiary of Shawnee Mission, Kansas-based Seaboard Corp., currently holds more than $1.2 million in contracts to store and transport cargo for the Defense Commissary Agency.

The Department of Labor’s Employee Benefits Security Administration has updated its website with the following:

• Affordable Care Act – Internal Claims and Appeals and External Review -
• Amendment to Interim Final Rule, available at http://www.ofr.gov/OFRUpload/OFRData/2011-15890_PI.pdf
• Technical Release 2011-02, available at http://www.dol.gov/ebsa/newsroom/tr11-02.html
• Revised Model Notice of Adverse Benefit Determination, available at http://www.dol.gov/ebsa/IABDModelNotice1.doc
• Revised Model Notice of Final Internal Adverse Benefit Determination, available at http://www.dol.gov/ebsa/IABDModelNotice2.doc
• Revised Model Notice of Final External Review Decision, available at http://www.dol.gov/ebsa/IABDModelNotice3.doc
• Updated List of Consumer Assistance Programs as of 5/23/11, available at http://www.dol.gov/ebsa/capupdatelist.doc

The U.S. Department of Labor (DOL) announced a new Web tool to help employers understand their responsibilities to report and record work-related injuries and illnesses under Occupational Safety and Health Administration (OSHA) regulations. 

The OSHA Recordkeeping Advisor helps employers and others responsible for organizational safety and health quickly determine whether an injury or illness is work-related; whether a work-related injury or illness needs to be recorded; and which provisions of the regulations apply when recording a work-related injury or illness.  To help employers in making these determinations, the OSHA Recordkeeping Advisor relies on their responses to a series of pre-set questions. 

You may access the OSHA Recordkeeping Advisor from the DOL web site at: www.dol.gov/elaws/osharecordkeeping.htm.

On April 5, 2011, the U.S. Department of Labor issued final regulations intended to address a number of amendments to the FLSA over the years and to update the regulations to reflect current conditions. The end result, which becomes effective May 5, 2011, will impact employers in a number of industries (such as restaurants that use the tip credit to calculate the minimum wage of tipped employees, and municipal employers that have comp time systems). The final regulations continue in place a regulation that declares that service advisers employed by automobile dealerships should be treated not as exempt but as non-exempt employees. The DOL reconfirmed this interpretation even though it has been rejected previously by several U.S. Courts of Appeals, including the Fourth Circuit (which covers Maryland, Virginia, West Virginia and the Carolinas).

Employees Paid on the Fluctuating Workweek Method

The final regulations address bonus and non-overtime premium payments for employees paid by the fluctuating workweek method. By way of background, if a non-exempt employee works fluctuating hours from week to week, the employer and employee may mutually agree to a fixed salary as “straight time” compensation “apart from overtime premiums” for whatever hours the employee is required to work in a given workweek. The fixed salary amount must be sufficient to provide compensation at not less than the minimum wage. If these conditions are met, the employer satisfies the obligation to pay overtime if it compensates the employee, in addition to the straight time pay, at least one-half of the regular rate of pay for all hours worked in excess of 40 in the workweek (rather than one-and-one half times the rate, since the straight time salary is agreed to cover all hours worked in a workweek). Because the employee’s hours fluctuate from week to week, the regular rate of pay must be determined each workweek depending on the hours worked.

The proposed regulations would have permitted employees compensated by this method to receive bonuses and other non-overtime premium payments without invalidating the pay method. However, the DOL reconsidered this position in the final regulations, siding with unions and employee-advocacy groups that argued that such payments are inconsistent with the purpose of the method: a fixed salary that does not vary from workweek to workweek. If bonuses and premium payments were permitted to supplement this pay, the DOL concluded, it “could have had the unintended effect of permitting employers to pay a greatly reduced fixed salary and shift a larger portion of employees’ compensation into bonus and premium payments potentially resulting in wide disparities in employees’ weekly pay depending on the particular hours worked.”

As a result of the final regulations, employers should ensure that employees paid by the fluctuating workweek method do not receive bonuses or incentive compensation other than premium payments for overtime. Although the rule seems punitive and perverse, failing to observe it will invalidate the pay scheme, obliging the employer to pay one-and-one half of the regular rate of pay, rather than one-half that rate.

Commuting Time and Employer-Provided Vehicles

The final regulations address a 1996 amendment to the Portal to Portal Act that provided that an employee’s normal commute to and from work does not become compensable time merely because the employee drives an employer-provided vehicle. The new regulation states, “The use of an employer’s vehicle for travel by an employee and activities that are incidental to the use of such vehicle for commuting are not considered ‘principal’ activities when the following conditions are met: The use of the employer’s vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or the representative of the employee.” The DOL’s introductory comments to the revised regulations also make clear that employees may not be required to incur direct or indirect out of pocket costs related to the commute, such as for parking or gas. Although both employer and employee advocates had asked the DOL to give examples of what constitutes activities “incidental to the use of a vehicle” for commuting, the DOL declined because doing so would require it to issue a new proposed regulation for comments. It may do so in the future.

Exclusion of the Value of Stock Options From the Regular Rate of Pay Computation

The final regulations also address a 2000 amendment to the FLSA, which provided that the value or income derived from employer-issued stock options are not included in non-exempt employees’ regular rate of pay for purposes of calculating overtime. The regulations specify the conditions that must be met to exclude such amounts.

• The grant must be made under a program, the terms and conditions of which are communicated at the time the program is adopted or at the time of the grant;
• In the case of stock options or stock appreciation rights, the right cannot be exercisable for a period of at least 6 months after the time of the grant (with the exception of rights arising as a result of an employee’s death, disability, retirement, or change in ownership);
• The right to exercise must be voluntary; and
• If determinations are based on performance criteria, the criteria must be previously established or based upon past performance of one or more employees subject to certain specified guidelines.

Article courtesy of Worklaw® Network firm Shawe Rosenthal.

The Department of Labor’s Employee Benefits Security Administration has updated its web site with the following:

• The first annual report on self-insured group health plans, available at http://www.dol.gov/ebsa/healthreform/#5
• Fact Sheet on Definition of the Term “Fiduciary”, available at http://www.dol.gov/ebsa/newsroom/fsfiduciary.html 
• Taking the Mystery Out of Retirement Planning – A Focus on Women & Retirement Webcast, information and registration available at http://event.on24.com/r.htm?e=301567&s=1&k=65A6A95A461C5293DD249BDF5256B72C  

The Department of Labor’s Employee Benefits Security Administration has posted the following related to the Affordable Care Act (ACA):

• FAQs on ACA Implementation, available at  http://www.dol.gov/ebsa/faqs/faq-aca.html
• Interim Procedures for Internal Claims and Appeals (Technical Release 2010-02), available at  http://www.dol.gov/ebsa/newsroom/tr10-02.html
• Revised Model Notice of Adverse Benefit Determination, available at  http://www.dol.gov/ebsa/IABDModelNotice2.doc
• ACA Compliance Assistance Webcast Series Archive:
  • Part I – http://event.on24.com/r.htm?e=238925&s=1&k=B82F56FA1A2599FC703EF7B0D7E68EAF
  • Part II – http://event.on24.com/r.htm?e=238931&s=1&k=0405A0AFD955D973EE2FA8F900305128
• Public Comments on the Interim Final Rule on Dependent Coverage of Children to Age 26, available at http://www.dol.gov/ebsa/regs/cmt-1210-AB41.html
• Public Comments on the Interim Final Rule on Grandfathered Health Plans, available at http://www.dol.gov/ebsa/regs/cmt-1210-AB42.html

According to the DOL they need more employees so they can do a better job of investigating and regulating already stressed employers. Who says government work doesn’t pay?!