By Christopher Brown, ProSential Group on
7/6/2016 11:53 AM
The Federal Civil Penalties Inflation Adjustment Act Improvements Act was passed by Congress in 2015 to maintain effectiveness of civil penalties enforced by the Department of Labor (DOL).
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By Christopher Brown, ProSential Group on
6/15/2016 3:18 AM
Recently, the Equal Employment Opportunity Commission (EEOC) released a new resource document that provides guidance on the rights of individuals with disabilities who need leave as a reasonable accommodation under the Americans with Disabilities Act of 1990 (ADA).
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By Christopher Brown, ProSential Group on
5/19/2016 4:03 PM
On May 18th, the Department of Labor (DOL) finalized the proposed change to the salary requirements that apply to exempt white-collar employees. Under the new rule, the minimum salary increases from the previous $455 a week to $913 a week. If an employer fails to provide this minimum salary to an otherwise exempt employee, the employee will no longer be considered exempt and thus be eligible for overtime compensation.
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By Christopher Brown, ProSential Group on
5/5/2016 7:13 AM
The Department of Labor, (DOL) has released an updated “Employee Rights Under the Family and Medical Leave Act” poster. The poster is required for all employers who are subject to the FMLA. The DOL has indicated that employers may continue to use the 2013 poster for the time being and has not indicated at what point the prior version will no longer meet the statutory requirements.
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By Peter Marathas, ProSential Compliance on
1/11/2016
“I’m just a bill, yes I’m only a bill, and I’m sitting here on Capitol Hill…”
A generation of Americans first learned of the legislative process from the 1976 “Schoolhouse Rock” cartoon segment called “I’m Just a Bill.” In the song, “Bill”—a fictitious bill proposed in Congress—starts as an idea by “some folks back home.” A Congressman hears the call and brings Bill to Washington, where he first sits in committee and then is passed by the House of Representatives and then by the Senate. If Bill is lucky enough to get signed by the President, he becomes law. Bill reminds us near the end of the song that “it’s not easy to become law.” That’s true. But the sequel to “I’m Just a Bill” might focus on the desire of some federal regulators to rewrite the laws after the process described in “I’m Just a Bill” is completed.
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By Christopher Brown, ProSential Group on
6/15/2015 10:15 AM
An important compliance deadline is quickly approaching. For companies that terminated their group health plan and enrolled their employees in individual policies, the IRS has made it clear that employers could not directly pay employee’s individual premiums or reimburse employees for their individual premiums. The IRS considers such an arrangement to be an Employer Payment Plan and will begin imposing substantial fines for such an arrangement beginning July 1st. To avoid such fines, a company can provide any remuneration to their employees upon plan termination, if done so in the form of a fixed taxable healthcare stipend that is not predicated on the purchase of health insurance.
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By Christopher Brown, ProSential Group on
5/27/2015 11:45 AM
True Oil, LLC and its associated companies are at the center of an EEOC lawsuit claiming pay discrimination under the Equal Pay Act of 1963. The lawsuit claims that True Oil and 9 of its sister companies are liable for gender discrimination because men were paid more for the same work as women in the firms’ common accounting department.
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By Christopher Brown, ProSential Group on
5/14/2015 10:47 AM
In a recent EEOC settlement, a national oil drilling company must pay $400,000 to resolve an alleged systematic sex based discrimination suit. The EEOC claimed that the company violated Title VII of the Civil Rights Act of 1964 by refusing to hire any women for their drilling platforms. The lawsuit claimed women who applied to the company were told that the company does not hire women for these positions. Various reasons were stated, such as a lac of housing for women and the assumption that women would pose a distraction to male employees.
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By Christopher Brown, ProSential Group on
4/21/2015 2:07 PM
In a recent ruling the Equal Employment Opportunity Commission (EEOC) ruled that the U.S. Army violated Title VII of the Civil Rights Act of 1964 in regards to the treatment of a transgendered employee who was subjected to discrimination and harassment by her supervisors and other employees.
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By Christopher Brown, ProSential Group on
3/27/2015 2:34 PM
The United States is quickly aligning Hazard Communication Standards with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The aim of these new regulations is to improve trade among manufacturers and to protect the lives of employees who handle hazardous materials on a daily basis, by aligning U.S. standards with the global standard.
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By Christopher Brown, ProSential Group on
3/19/2015 11:30 AM
The Department of Labor (DOL) has issued a final rule that defines how the term “Spouse” under FMLA applies to same-sex marriages.
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By Christopher Brown, ProSential Group on
2/6/2015 11:40 AM
Executive Order 13672, signed on July 21, 2014, which extends anti discrimination protections to individuals on the basis of sexual orientation and gender identity. This rule directly impacts Federal contractors and subcontractors.
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By Christopher Brown, ProSential Group on
10/6/2014 3:53 PM
On Monday October 6th, the Supreme Court decided not to hear arguments appealing recent decisions overturning same-sex marriage bans in Indiana, Oklahoma, Utah, Virginia and Wisconsin. By failing to intervene, lower court decisions will remain intact, allowing same sex marriage to resume in the five states.
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By Christopher Brown, ProSential Group on
8/4/2014 9:37 AM
The Equal Employment Opportunity Commission (EEOC) has recently issued new guidance on the Pregnancy Discrimination Act (PDA). The PDA was initially enacted in 1978, but has been somewhat neglected with the most recent formal guidance issued in 1983.
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By Peter Marathas, ProSential Compliance on
7/23/2014
July 22, 2014
marked a day when two different federal courts came out on opposite sides of the
same question. In the morning, the U.S. Court of Appeals for the DC Circuit
dealt a serious blow to the Obama Administration with a decision that called
into question the structural integrity of the “pay-or-play” mandates under the
Affordable Care Act (“ACA”). Later in the day, the U.S. Court of Appeals for the
Fourth Circuit, sitting down the road in Richmond, came out on the other side of
the question.
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By Peter Marathas, ProSential Compliance on
7/22/2014
The U.S.
Court of Appeals for the DC Circuit has dealt a serious blow to the Obama
Administration today with a decision that calls into question the structural
integrity of the “pay-or-play” mandates under the Affordable Care Act (“ACA”).
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By Christopher Brown, ProSential Group on
7/1/2014 2:28 PM
On Friday
June 20, 2014, the Department of Labor (DOL) issued a notice of proposed
rulemaking regarding the definition of “spouse’ under the Family and Medical
Leave Act (FMLA).
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By Christopher Brown, ProSential Group on
5/30/2014 2:29 PM
As small
employers (those with less than 50 FTEs) continue to evaluate the impact of the
Affordable Care Act (ACA), growing minorities of business owners are seeking the
healthcare off-ramp. Many of these employers believe that they and their
employees may simply be better off on plans offered through the marketplace,
particularly if their employees may qualify for federal subsidies.
Understandably, employers are also concerned that such a major shift in employee
benefits could contribute to low morale or even outright hostility from their
employees.
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By Peter Marathas, ProSential Compliance on
5/16/2014
In April, the IRS released the 2015 inflation adjustments for Health Savings Accounts (HSA) and HSA-qualified high deductible health plans (HDHPs). A month earlier, HHS released details on the “premium adjustment percentage,” which is used to calculate annual increases in cost sharing under the Affordable Care Act’s (ACA) maximum out-of-pocket rules. These ACA rules limit participant cost-sharing under non-grandfathered group health plans for covered, in-network essential health benefits.
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By Peter Marathas, ProSential Compliance on
5/9/2014
There has
been much confusion and concern about the interplay between the COBRA
continuation coverage rules and the new Health Insurance Marketplace established
under the Affordable Care Act (the “Marketplace”). One important question has
been how individuals could transition from COBRA continuation coverage to (often
cheaper) Marketplace coverage. Also, many individuals are confused about whether
they should continue their available COBRA continuation coverage or separately
opt for coverage through the Marketplace. To help clarify the rules, the
government agencies have issued some important new guidance.
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By Peter Marathas, ProSential Compliance on
4/18/2014
Clients
across the country have been approached by a variety of vendors claiming to have
developed a “solution” for dealing with high cost participants. The particular
names of the programs differ, as do some of the specific details, but in general
these may be called “Affordable Access Plans,” “Affordable Care Plans,”
“Alternative Care Plans” or something similar. Regardless of what they are
called, these arrangements all promise employers a no-risk way to remove high
claimants from their self-insured health plans, and move them over to the public
exchanges. Is this a great idea, or what? From our perspective, “or what” would
apply as would the old adage: “if it sounds too good to be true, it probably
is.”
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By Peter Marathas, ProSential Compliance on
4/16/2014
On March 28, 2014, the Internal Revenue Service’s (IRS) Office of Chief
Counsel released two memoranda that provide guidance on certain administrative
issues affecting employers that sponsor health flexible spending arrangements
(health FSAs).
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By Christopher Brown, ProSential Group on
4/8/2014 10:17 AM
On March
13th, the White House released a presidential memorandum directing the
Department of Labor to revise and update regulations under the Fair Labor
Standards Act (FLSA), particularly in regard to “white-collar” exemptions.
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By Peter Marathas, ProSential Compliance on
4/3/2014
On April 1,
2014, President Obama signed into law the Protecting Access to Medicare Act of
2014. The primary purpose of the law was to provide a one-year delay of a 24%
reduction in payment rates for physicians who participate in the Medicare
program.
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By Peter Marathas, ProSential Compliance on
3/18/2014
On Thursday,
February 27, 2014, the Centers for Medicare and Medicaid Services (“CMS”),
released a letter to the Health Insurance Exchanges (“Exchanges”) enabling them
to extend premium credits (i.e., federal subsidies) to individuals who were
unable to enroll in qualified health plans (QHPs) through an Exchange due to
technical difficulties with the Exchange’s automated eligibility and enrollment
functionality. Individuals in these situations may have experienced “exceptional
circumstances” and are afforded special relief—they may receive retroactive
coverage and premium credits once they enroll in a QHP, or they may be eligible
for premium credits for a QHP purchased outside of an Exchange in the individual
market.
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By Peter Marathas, ProSential Compliance on
3/6/2014
On February
10, 2014, the IRS released final regulations on the Affordable Care Act’s (ACA)
employer “shared responsibility” provisions, also known as the “pay-or-play”
mandate. The final regulations provide significant transition relief to
“smaller” applicable large employers – i.e., those with 50-99 full-time
employees, including full-time equivalents (FTEs). Prior to the final
regulations’ release, employers that employed between 50 and 99 full-time
equivalents were required to begin complying with the pay-or-play mandate in
2015, just like all other major employers. In the final regulations the IRS
granted a brief but welcome reprieve to employers employing 50 to 99 FTEs. These
small employers will not be subject to the pay-or-play rules until 2016.
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By Christopher Brown, ProSential Group on
2/21/2014 4:09 PM
The U.S.
Departments of Labor, Health and Human Services, and Treasury have recently
issued proposed rules that would adjust regulations under the Health Insurance
Portability and Accountability Act (HIPAA) regarding excepted benefits.
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By Peter Marathas, ProSential Compliance on
2/21/2014
Federal
Regulators (the Departments of Labor, Treasury, and Health and Human Services)
announced yesterday, February 20, that they are releasing Final Regulations
implementing the Affordable Care Act’s (ACA) 90-day limit on waiting periods for
group health insurance coverage. The Final Regulations will be released in the
Federal Register on Monday, February 24.
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By Peter Marathas, ProSential Compliance on
2/17/2014
Employers who
engage a significant number of 1099 employees run a tremendous risk of incurring
the no insurance penalty, even when they offer coverage to all of the employees
they categorize as full-time.
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By Peter Marathas, ProSential Compliance on
1/29/2014
As previously
reported, the federal agencies responsible for drafting the rules implementing
the Affordable Care Act recently issued FAQ Part XVIII, regarding implementation
of the market reform provisions of the ACA. Question 12 in FAQ Part XVIII
includes guidance as to the effect of the ACA on the Mental Health Parity and
Addiction Equity Act of 2008.
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By Peter Marathas, ProSential Compliance on
1/23/2014
Part of the
government’s efforts to provide so-called “subregulatory guidance” includes
guidance for employers sponsoring wellness programs that contain tobacco
cessation components, and on the “reasonable alternatives” required to be made
available under health-contingent wellness programs.
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By Peter Marathas, ProSential Compliance on
1/21/2014
The federal
agencies responsible for drafting the rules implementing the Affordable Care Act
issued FAQ Part XVIII regarding implementation of the market reform provisions
of the Affordable Care Act, including new relaxed rules for fixed indemnity
plans that meet certain key requirements.
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By Peter Marathas, ProSential Compliance on
1/17/2014
On January 9,
2014, the Departments of Treasury, Labor, and Health and Human Services
(collectively, the “Departments”) published the eighteenth installment of a
series of answers to Frequently Asked Questions regarding implementation of the
Affordable Care Act (ACA) and the Mental Health Parity and Addiction Equity Act
of 2008 (MHPAEA).
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By Christopher Brown, ProSential Group on
1/3/2014 3:13 PM
Although the
“pay or play” penalty under the Affordable Care Act (ACA) was delayed until
2015, January 1st of 2014 still remains an important date for applicable large
employers. This is particularly the case for employers that don’t currently
sponsor a health plan or have a significant number of variable hour employee.
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By Christopher Brown, ProSential Group on
1/2/2014 12:01 PM
The E-Verify
service has recently been enhanced to warn employers when an employee may have
provided a fraudulent Social Security Number (SSN).
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By Christopher Brown, ProSential Group on
11/26/2013 2:32 PM
On October
31st, the IRS issued Notice 2013-71 that further eroded the “use it or lose it”
rule by allowing for a carryover of up to $500 of unused FSA benefits. The
carried over funds do not count towards the new plan year’s statutory $2,500
limit.
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By Christopher Brown, ProSential Group on
10/22/2013 8:26 AM
Title VII of
the Civil Rights act of 1964 protects employees from discrimination on the basis
of religion. Employers sometimes mistakenly believe that personal appearance
policies can in effect override this protection, allowing them to impose
requirements that may violate an employee’s religions tenants. In a recent case
against Abercrombie & Fitch, a federal judge found clothing giant Abercrombie &
Fitch liable for religious discrimination when it fired a Muslim employee for
wearing her hijab (religious headscarf). The ruling came in an employment
discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission
(EEOC).
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By Christopher Brown, ProSential Group on
8/29/2013 11:37 AM
The practice
of paying for benefits on a pre-tax basis has become so common that employers
often forget that if done incorrectly, both employer and employee may face
significant tax consequences.
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By Christopher Brown, ProSential Group on
8/21/2013 8:21 AM
Have you
heard this line? – To avoid penalties under the ACA, don’t let any of your part
time employees ever work 30 or more hours per week! If you have and it seems like a good strategy, this article isn’t for you.
Rather, what we’ve heard from the vast majority of employers is that there is no
practical way they could operate their business with such a hard arbitrary
limit.
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By Christopher Brown, ProSential Group on
7/11/2013 3:36 PM
Although
changing job responsibilities may be relatively common in some firms, companies
must always exercise caution when making such a change to the position of an
employee with a disability. In a recent case brought by the U.S. Equal
Employment Opportunity Commission (EEOC) against Luminant Mining Company LLC, a
Dallas, Texas based coal mining company, the EEOC charged that the coal mine
fired an equipment operator nine days after receiving information from a doctor
indicating that he was disabled, and recommending an accommodation that the
company could have easily granted.
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By Christopher Brown, ProSential Group on
7/10/2013 10:23 AM
A recent case
in Pennsylvania illustrates the risks of an increasingly common payroll option
utilized by employers of low-wage workers. In this particular case, a
Pennsylvania woman who briefly worked at a McDonald's franchise is suing the
owners because she claims she was told she must use an employer provided debit
card to receive payroll. The card, she says, charges heavy fees for cash
withdrawals.
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By Christopher Brown, ProSential Group on
7/8/2013 9:02 AM
The recent
Supreme Court Decision striking down key provisions of the Defense of Marriage
Act (DOMA) has introduced new uncertainty for employers regarding the treatment
of employees with same-sex spouses. The DOMA decision is particularly confusing
because of complex issues relating to Federalism and the coordination between
Federal and state law. Most Federal laws rely on state definitions of marriage.
One of the unusual things about DOMA was the establishment of a Federal
definition (or rather limitation) on what constituted marriage. Accordingly,
once the Supreme Court issued its decision many Federal laws automatically
reverted to their reliance upon state definitions of marriage.
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By ProSential Group on
7/3/2013 8:36 AM
The Obama
Administration announced Tuesday afternoon that it would delay the penalty and
reporting provisions of the ACA’s employer mandate (also known as “Play or Pay”)
until 2015. This was due in part to comments from interested parties concerned
with the complexity of the proposed regulations amid looming implementation
deadlines, and in part to the Administration’s desire to encourage employers to
continue offering health insurance to their employees. Accordingly, both the
employer and insurer reporting requirements and any penalties under the Play or
Pay mandate have been delayed until 2015.
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By Peter Marathas, ProSential Compliance on
6/26/2013
One
part of an effective strategy for dealing with the affordable care requirements
is to actually encourage employees on the bottom-end of the pay scale to not to
take the coverage offered. This reduces the cost to the employer of offering
affordable coverage, while still meeting the requirements of the federal law.
Even if encouraging employees not take the insurance is not part of an
employer’s strategy, allowing employees to elect potentially less-expensive
alternatives to coverage may be something an employer wants to do.
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By Christopher Brown, ProSential Group on
6/25/2013 12:55 PM
A South Carolina BMW facility and discount retailer Dollar General are being sued by the EEOC for disparate impact discrimination under Title VII of the Civil Rights Act. The EEOC claims that the two companies violated Title VII by implementing and utilizing a criminal background policy resulting in employees being fired and others being screened out for employment.
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By Peter Marathas, ProSential Compliance on
6/11/2013
Clients often
ask whether the taxes paid under the Affordable Care Act (ACA) are deductible.
The answer is generally: “no.”
However, the
Internal Revenue Service (IRS) quietly released General Counsel Memorandum (GCM)
(dated May 31, 2013 but released June 7, 2013) (AM2013-002), in which they
acknowledge that the Patient-Centered Outcomes Research Institute (PCORI) fee is
an excise tax (and not a “fee”) and that as far as deductibility is concerned,
this tax under the ACA is the exception to the general rule; according to the
GCM, the PCORI fee is deductible by the entity that pays the fee.
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By Christopher Brown, ProSential Group on
6/3/2013 2:16 PM
On May 8,
2013 the Department of Labor issued the long awaited Model Notice to Employees
of Coverage Options. The Affordable Care Act originally required that the notice
be furnished to all employees covered by the Fair Labor Standards Act by March
1, 2013. However, on January 24, 2013 in “FAQs about Affordable Care Act
Implementation (Part XI)” the DOL indicated that the notice requirement would
not take effect on March 1, but be delayed until sometime in the “late summer or
fall of 2013, which will coordinate with the open enrollment period for
Exchanges.”
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By Peter Marathas, ProSential Compliance on
6/3/2013
On May 29, 2013, the Departments of Health and Human Services, Labor and Treasury issued final regulations on implementing and expanding employment-based wellness programs.
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By Christopher Brown, ProSential Group on
5/2/2013 8:00 AM
The Department of Labor (DOL) has recently issued an updated version of the Summary of Benefits and Coverage (SBC) template. The new SBC template, which was issued by the DOL on April 24, 2013, is effective for plans years beginning on or after January 1, 2014. Plan years beginning before January 1, 2014 may use the previously issued SBC template. The new SBC template is virtually identical to the previous version with two notable exceptions.
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By Christopher Brown, ProSential Group on
4/23/2013 2:53 PM
A recent Family and Medical Leave Act (FMLA) case reinforces the need for firms to seek a clear picture of employment obligations associated with mergers and acquisitions.
In this case, an Atlanta based firm purchased an Arizona firm. An employee who began job protected leave under the FMLA prior to the acquisition was not reinstated by the acquiring firm when his FMLA leave ended. Ultimately the acquiring firm was found to be a successor employer and required to offer reinstatement, back pay and medical benefits to the employee who had been on leave.
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By Christopher Brown, ProSential Group on
4/18/2013 1:19 PM
On March 8, 2013, the United States Citizenship and Immigration Services (USCIS) issued a new Form I-9, the previous version expired some time ago, but USCIS was greatly delayed in producing a new form. All employers in the United States are required to complete an I-9 for every newly hired employee.
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By Peter Marathas, ProSential Compliance on
4/8/2013
Last
month, Health and Human Services (HHS) released a proposed rule that delays
part of the Small Employer Health Option Program (SHOP). Note that this
delay does not change the effective date of the ACA’s employer “Play or Pay”
mandate.
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By Christopher Brown, ProSential Group on
4/5/2013 9:00 AM
On February
6, 2013, the U.S. Department of Labor (DOL) published a final rule to implement
amendments to the Family and Medical Leave Act (FMLA) made by the National
Defense Authorization Act for Fiscal Year 2010 (NDAA) and the Airline Flight
Crew Technical Corrections Act (AFCTCA). The new rule was effective March 8,
2013.
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By Peter Marathas, ProSential Compliance on
2/21/2013
There’s been a lot of buzz lately about increased efforts by federal agencies of their plan audit activities. Our lawyers across the country have seen a substantial uptick in activity from both the Department of Labor (DOL) and the Internal Revenue Service (IRS). Informal discussions in Washington, D.C. and regional offices have confirmed what we know anecdotally to be true: the federal agencies responsible for monitoring compliance of ERISA-governed plans are stepping up their audit efforts across the country.
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By Tammy Gurowski on
11/5/2012 10:26 AM
We just attended a conference in Chicago with ProSential Partners and recognize that the ACA will change the marketplace. The challenge becomes how do we continue to demonstrate value, knowledge and deliver savings to our clients? How do we help control costs, educate employees, manage risk and streamline administrative efforts?
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By Peter Marathas, ProSential Compliance on
10/16/2012
The number one question on the minds of business owners and managers across the country is exactly how much is it going to cost to implement the Patient Protection and Affordable Care Act (the “Act”). Uncertainty abounds. However, the one thing that is certain two years after its passage is that there is nothing affordable about the Act—at least not for employers and plan sponsors.
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