Construction Risk Advisor: September 2018

Industry Overspending $177 Billion Per Year

The average time construction professionals in the U.S. spend on avoidable issues like conflict resolution, rework and looking for project data costs the industry over $177 billion annually, according to a new report.

The participants surveyed for the report said they spend 65 percent of their time on “optimal” activities like communicating with stakeholders and optimizing resources that keep projects on track. They spend the remaining 35 percent of their time on “nonoptimal” tasks like hunting down project information, resolving conflicts and dealing with mistakes that require rework. That amounts to almost two full working days lost per person each week.

Some of the reasons for the nonoptimal costs include poor communication, constrained access to data, incorrect data and the lack of an easy way to share data with stakeholders. Another possible reason is that more than 80 percent of the survey’s respondents said they don’t use mobile devices to collaborate and access project data, despite the fact that mobile devices could help them work more efficiently.

Newsletter Provided by: Hierl's Property & Casualty Experts

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States Say Contractors Must Guarantee Wages

Maryland’s General Contractor Liability for Unpaid Wages Act becomes effective on Oct. 1, making private contractors for prime construction projects in the state financially responsible for unpaid wages of subcontractor employees. And unless the reason for nonpayment is related to a legitimate dispute, general contractors could be held responsible for up to three times the amount owed, plus attorney fees.

California and Oregon also enacted similar laws earlier this year. In California, general contractors are now liable for the unpaid wages of any employee who furnishes labor to or through them, plus unpaid benefits and interest.

Oregon’s wage protection law creates liability for the general contractor only if the worker’s subcontractor employer has not yet been paid in full.

Mitigating The Risk

In order to reduce the risk of general contractors having to pay their subcontractors’ employee wages, some industry experts are recommending that subcontractors provide their own payment bonds.

Opponents of the recent laws argue that it could be difficult for subcontractors on rocky financial ground to meet bond underwriting requirements. And since large projects could require several new bonds per job, overall project costs could increase significantly. Plus, if subcontractors don’t pay up, prime contractors will have to pay twice for the same labor.


The DOL Audit: Understanding the spectrum of risk

Avoiding Department of Labor (DOL) audits are the best way to survive them but audits can happen. Read on to learn more about the spectrum of risks.


Risk is discussed in many contexts in the retirement plan industry. It comes up as a sales tactic; as good counsel from trusted advisors preaching procedural prudence; or, often, in the form of intimidating industry vernacular like fiduciary liability, fidelity bond or the big, bad Department of Labor.

This DOL paranoia is an underlying motivation that drives the risk conversation with distributors and retirement plan sponsors. Naturally, the question of probability comes up: What is the likelihood the DOL will audit my plan? The answer is low, but it can happen.

When evaluating retirement plans in terms of risk, it’s best viewed as a spectrum. Generally, risk falls into three principal areas of concern.

Lawsuit risk: The likelihood of a fiduciary-based lawsuit for most plan sponsors is very low. However, if this does arise, it will be unpleasant and expensive, both financially and in terms of reputation.

Administrative breach: Upon inspection, most plans will have some kind of operational defect. Typically, these are either an administrative, fiduciary or a document-level defect. If left uncorrected, they are potentially disqualifying. The good news is the IRS has corrective methods in place for the most common errors. Generally, these are relatively inexpensive to correct but will cost clients a little time and money, and likely some aggravation.

DOL/IRS audit risk: It’s usually the administrative breach discussed above that leads to the DOL/IRS investigation or audit. These agencies are not interested in disqualifying plans; they are more interested in correcting them and protecting the participants from misdeeds (intentional or not).

When a DOL audit does happen, it tends to occur because someone invited investigation. This could be the result of a disgruntled former employee, a standard IRS audit that somehow spiraled into a full DOL investigation or a variety of other reasons. So, what can employers and their service providers do to avoid an audit?

The IRS and DOL don’t publish an official list of items that could lead to an investigation, but it’s a good idea to look at your plan’s most recent IRS Form 5500 filings to decrease the likelihood of an audit. This is publicly available information that can signal to government agencies that something might be wrong and they should take a closer look. Some of the more common red flags include:

  • Line items that are left blank when the instructions require an answer
  • Inconsistencies in the data disclosed on the Form 5500 schedules
  • A large drop in the number of participants from one year to the next
  • A large dollar amount in the “Other” asset line on the Schedule H
  • Having an insufficient level for the plan’s required Fidelity Bond
  • Consistently late deposits or deferrals and hard-to-value or non-marketable investments (including self-directed brokerage accounts or employer stock) could be counted as red flags as well.

Plan sponsors should make sure that 5500s are completed with the same care and attention to detail used when filling out IRS 1040, and ensure the plan is being governed properly and in compliance with ERISA. This can be a challenge even for the most well-intentioned plan sponsors, given the complexity of the task and the fact that most employers don’t have the expertise in-house.

Calling in a specialist

But you don’t need to navigate these waters on your own. Instead, you might consider the “Prudent Man” rule, which implies that when expertise is required yet absent, a prudent person outsources the needed expertise. There is a wealth of talented retirement plan specialists and advisors available to help guide you through the audit process or, better yet, steer clear of it altogether.

When considering whether to employ one of these specialists, you will need to evaluate their experience, expertise and training, as well as if they provide services to help the plan sponsor keep the DOL (and the IRS) out of their offices. Some commonly available services include:

  • 5500 reviews to help plan sponsors avoid potential audit triggers
  • Coaching services to help plan sponsors identify and eliminate some of those difficult-to-value assets like employer stock or self-directed brokerage accounts
  • Service provider evaluations to help plan sponsors identify those who will work as a plan fiduciary and put the appropriate guardrails in place on an automated basis

In conclusion, the best way to survive a potential DOL investigation or IRS audit is to avoid one altogether. Committing to best practices for running the plan may mean outsourcing a great deal of the work to specialist retirement plan providers and advisors. Plan sponsors would be wise to consider working with service providers who operate as plan fiduciaries themselves. In this way, you’re more likely to avoid problems and achieve better plan results, leading to better outcomes for everyone.

SOURCE: Grantz, J (7 June 2018) "The DOL Audit: Understanding the spectrum of risk" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/dol-audit-understanding-the-spectrum-of-risk?feed=00000152-18a5-d58e-ad5a-99fd31fe0000


Agriculture Risk Advisor: September/October 2018

3 Tips For Hiring Farm Labor

With some farmers struggling to find reliable farm labor, it is important to invest some thought in the hiring process. Here are some tips for finding the right help:

  1. Examine your needs. You might have a general idea in your head of what work needs to be done, but it’s best to be specific. Narrow down broad processes into specific jobs so you can determine how much help you truly need.
  2. Think about desired traits. Do you need someone to fill a temporary need, or are you hoping that person can go on to fill a managerial role? You’ll have to determine whether people skills are more important than manual labor or machinery skills, and list those traits in your job description.
  3. Consider hiring for a trial period. If you’re hesitant about a candidate but need immediate help, consider hiring them for a short-term trial period. This saves you from high employee turnover while buying you time to recognize your needs. It allows both you and the worker to communicate any frustrations and expectations after the trial period before considering whether the working relationship is worth investing in long term.

Newsletter Provided by: Hierl's Property & Casualty Experts

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Rise Of Robotics In Farming

Producers are increasingly considering using farming robots to replace human workers who either can’t or aren’t interested in picking crops. Agriculture is a prime market for robotics since it is less regulated than other industries.

Robots Needed To Fill Unwanted Jobs

Farming’s labor crunch is a global problem, and industry experts expect things to get worse in the years to come. Produce growers are struggling to man the fields, and higher wages aren’t persuading people to perform the physically demanding tasks.

According to the Department of Labor, the 2017 median pay for an agricultural worker was $11.41 per hour. In California, farm wages can top $20 per hour. But this is still not enough to attract laborers at a sufficient level.

Advances In Farming Technology

Driscoll’s, one of America’s largest produce distributors, has been testing a robot made by Harvest CROO Robotics, a Florida-based startup. The robot is capable of covering 8 acres in a single day and replacing a team of more than 30 human pickers.

Another emerging farming technology is a “no-touch” vineyard developed by researchers at UC Davis, which waters vines and picks fruit while improving yields, quality and costs. It costs about 7 cents in labor per vine to manage the touchless vineyard, compared to $1 per vine in a conventional vineyard.

Although robotics isn’t expected to steal all of the farming labor jobs, experts believe it could still be a disruptive technology, requiring a change in the way traditional growers operate.


Cyber Risks & Liabilities: September/October 2018

In this Issue

Who’s to Blame if a Security Breach Affects Your Organization?

A recent survey found that 70 percent of consumers expect businesses to take responsibility in the event of a data breach. But who within your organization should take the heat?

Acronyms All Businesses Need to Know

As cyber security evolves, it’s easy to become overwhelmed with all the terms and acronyms used. This article lists some of the most common acronyms in cyber security.

Increase in Attacks Against 911 Call Centers Highlight Need for New System

There have been 184 cyber attacks on public safety agencies and local governments since 2016, and 42 of those attacks targeted 911 call centers

Who’s to Blame if a Security Breach Affects Your Organization?

If a security breach affects your organization, your main focus may be to solve the problem as quickly as you can, not point the finger in blame. But your customers want to know why it happened and who was responsible, even if the breach occurred because of their own lax security measures (e.g., sharing passwords or opening suspicious emails). In fact, a recent survey found that 70 percent of consumers expect businesses to take responsibility in the event of a data breach. But who within your organization should take the heat?

The CEO

If an organization doesn’t budget enough for security solutions, the fault will likely be placed on whoever makes the financial decisions, stemming from the CEO. In fact, 29 percent of IT decision-makers who took part in a recent VMware survey thought that the CEO should be held responsible in the event of a large-scale data breach.

The CISO

If a data breach occurs even after your company adequately budgets for cyber security solutions, 21 percent of IT security professionals surveyed would still hold your CISO accountable in the event of a data breach.

IT Personnel

According to a 2014 report, 95 percent of cyber security incidents are due to human error. That’s why personnel who manage IT security on a regular basis are easy targets for blame.

Other Employees

While accountability may start with the CEO and board of directors, everyone in your organization should take responsibility for cyber security. Even if you have the most modern cyber security technology, its return on investment will be nonexistent without full employee participation

Increase in Attacks Against 911 Call Centers Highlight Need for New System

There have been 184 cyber attacks on public safety agencies and local governments since 2016, and 42 of those attacks targeted 911 call centers, according to cyber security firm SecuLore Solutions.

Over half of the attacks involved ransomware, in which hackers used a virus to control the emergency systems and hold them hostage for payment. Most of the remaining attacks were denial-of-service attacks, which involved a flood of fake calls that prevented call centers from addressing valid emergency calls.

Due to the vulnerabilities in the current 911 system and the fact that it doesn’t address the ways people communicate in the modern world—such as through texts—the emergency response industry is encouraging state and local governments to adopt a system called Next Generation 911.

The Next Generation 911 system will have advanced security and be able to seamlessly move incoming calls to other centers when needed. The new system also gives callers the choice of calling from a phone line or sending data through approved telecommunications carriers and internet service providers.

Next Generation 911 is expensive, however, and governments have been slow to adopt it. Plus, its increased connectivity also opens new potential means of attack, according to industry experts. Sophisticated defense systems run by in-house cyber security teams will be vital as the emergency response industry adopts any new technology.

Acronyms All Businesses Need to Know

Newsletter Provided by: Hierl's Property & Casualty Experts

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Seeing beyond size in vision care networks

There are many other factors to consider when it comes to deciding which vision care network best fits the needs of your employees. Read this blog post to learn more.


Most people believe that “size matters” in regards to provider networks, but in the world of vision care there are other important factors to consider when deciding which network matches the needs of employees. Network members usually see their vision provider for routine services just once per year. When an employer changes vision administrators, employee in-network utilization is more than 90% regardless of the new network size. Why? Employees are not concerned about changing providers to access in-network benefits. Plus, the new vision provider network will always provide access to multiple providers wherever the employee lives and works.

But what about the quality of the vision care network? To properly assess this measurement of competing networks, employers and benefit advisers need to ask several different questions.

Determine the network’s quality
The quality of the network is vital. Start asking these questions: How are vision care providers credentialed? Do they follow the National Committee for Quality Assurance (NCQA) guidelines developed to improve healthcare quality? Are there provider audit programs provided on an ongoing basis? Is the vision care provider re-credentialed and how often? How frequently are reviews conducted of the Office of Inspector General and Medicare and Medicaid disbarment lists?

Establish the network’s effectiveness
Once you know you have a quality network, now you must ask how effective the network is. How diverse is the network? Are there ample ophthalmologists, optometrists and optical retailers we can access? Are some private practitioners? You want to make sure that a solid provider mix is available to give employees options when choosing a vision care provider.

It’s critical to know what languages are spoken within the employee population as well as the providers who care for them. If you have a large population who speak a certain language you want to make sure your network gives them access to people who can truly understand them and with whom they feel comfortable.

Finally, look at the hours of operations. With schedules being busier now than ever before, people need flexibility when it comes to visiting hours. Do they offer evening hours? Weekend hours? This is particularly important for single parents who work during the week and need the flexibility to visit an eye care professional with his or her child after work.

Having a diverse, quality vision care provider network with convenient access helps keep employees happy, healthy and in-network.

Other factors to consider
One of the other factors to be cognizant of is network ownership. Today, many managed vision care companies are involved in not only providing coverage for vision care but also in delivering it. This means the vision benefits company you’re considering may own optical laboratories, frame companies or retail locations, which can pose conflicts of interest between you, your employees and the managed vision care company. Their need to produce profits can lead to undo pressure on your employees to purchase expensive and potentially unnecessary lens types, materials and options. Coupled with direct to consumer advertising and the expansion of brands, eyeglasses have become even more expensive.

This leads to another factor for consideration. Does the potential vision benefit administrator provide meaningful information to help your employees make informed decisions about what they really need, when it comes to the myriad of options available for frames, lenses and lens options?

Network matching
Start by remembering two things when matching networks. First, if you’ve changed vision carriers in the past, you selected a network that was not identical to your previous one. Vision networks never match each other. Some have higher proportions of independent providers and lower percentages of large retailer chains. Second, the infrequency with which the vision benefit is available to be used mitigates the impact of changing providers. People don’t have the same attachment to their eye care professional as they do with their physician.

Beyond quality and effectiveness is the important factor of access. The vision industry has grown to a point where there are often many more providers than would ever be necessary to provide convenient access for your membership. The reality is that two networks may be equally sized in an area and yet there may be little overlap, making the selection of the best network with the lowest overall cost a better strategic direction than simply selecting the one with the highest provider match.

The vision industry has long demonstrated that employees are willing to select new providers, especially when costs are more competitive, and services are more convenient.

SOURCE: Moroff, C (22 August 2018) "Seeing beyond size in vision care networks" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/opinion/seeing-beyond-size-in-vision-care-networks?feed=00000152-a2fb-d118-ab57-b3ff6e310000


Safety Focused Newsletter: September 2018

Staying Safe When Traveling for Work

Many jobs require employees to travel for work, sometimes even abroad. While this can be a fun experience, staying safe can be much more difficult if you are in an unfamiliar area. To keep yourself safe when traveling for work, remember the following tips:

  • Familiarize yourself with local customs and laws, as you are subject to them while traveling.
  • Avoid hailing taxis on the street when possible. Instead, have your hotel’s concierge service book a reliable driver or car service for you.

Research is essential when it comes to ensuring a successful business trip and maintaining your safety.

  • Keep hotel doors and windows locked at all times. When you arrive, and any time you leave and return to the room, make sure the locks are working.
  • Ensure that your room has a working peephole and use it to verify the identity of anyone visiting your room. If an unexpected visitor claims to be a hotel employee, call the front desk to confirm.
  • Take photos of important documents and information, like your passport and driver’s license, and leave copies at home.

Research is essential when it comes to ensuring a successful business trip. Planning ahead and remaining vigilant can make all the difference.

Ways to Communicate with Peers You Disagree With

In your professional career, you’re bound to have to work alongside people you don’t agree with. For some, this can be a source of stress, particularly if you have to go out of your way to keep the workplace relationship civil.

In these situations, it’s important to know how to interact professionally. Not only will this display a high level of maturity to your co-workers and managers, but it can also help you avoid making a bad situation worse.

To work with peers you disagree with, do the following:

  • Listen more than you speak. Diversity of opinions is important, and allowing yourself the time to process what another person wants can help you understand where they’re coming from.
  • Think before you respond. Choose your words carefully when responding to something you disagree with. Doing so ensures that you can justify your arguments in a sincere, respectful tone.
  • Try to find common ground and avoid dragging others into an argument.
  • Avoid personal insults. Discussions should be civil and focus on workplace issues.
  • Ask questions. Sometimes disagreements come from a lack of understanding. Asking questions in a friendly tone can be a good way to steer a conversation into a more positive direction.

Working with people you disagree with can be difficult, but it’s an important part of most jobs. If you are concerned that you and a peer will never get along, consider speaking to a supervisor.

Newsletter Provided by: Hierl's Property & Casualty Experts

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Identity theft protection benefits and the business case for employers

According to SANS Institute, it can take up to 200 hours of personal time to resolve issues related to identity theft. With the rise of identity theft in the news, many employees are looking to their employers to provide identity protection benefits. Read on to learn more.


With identity theft in the news constantly, many employees are turning to their employers to ask for an identity protection benefit.

Let us focus on productivity and wellness. Identity theft can wreak havoc on an employee’s personal and work life. According to SANS Institute, it takes an average of six months and up to 200 hours of personal time to resolve issues related to the theft. This includes hours calling banks, credit card companies, filing police reports, notifying the Social Security Administration, and alerting credit bureaus. Most of these calls and follow up activity must be made during business hours. According to ITRC’s latest study, 22% of respondents took time off of work when dealing with issues of identity theft.

Identity theft also impacts wellness and mental health. According to the ITRC study, 75% of respondents reported that they were severely distressed by the misuse of their information, and many sought professional help to manage their identity theft experience — either by going to a doctor for their physical symptoms or seeking mental health counseling.

These findings make it clear that identity theft directly impacts productivity and wellness. That is why comprehensive and compassionate restoration services should be a key element of any ID Protection plan offered by the employer.

Restoration services are the fixers in a comprehensive identity protection plan. For victims of identity theft, the restoration specialist will do the required work to restore the victim’s identity. Specialists make the calls during business hours, complete the necessary paperwork, and manage the process. They free up the employee to focus on their job, and alleviate the stress of dealing with the challenges of identity restoration.

There are a range of features to look for when evaluating restoration services across plans. Some plans only offer advice and information kits to guide members on what steps they need to take. Those services typically do not do the work for the member.

For plans that provide a full restoration process, consider if the plan provides victims with a dedicated restoration specialist as a single point of contact. Since the restoration process can take months or years, it’s best if a victim has a consistent person to speak with who knows the case and can provide periodic updates. Restoration services should be available 24/7 so victims can initiate the process immediately to lessen the damage. Plans should also provide multilingual specialists to best serve all members and handle all types of identity theft.

Although monitoring may alert individuals that are a victim of identity theft, the even greater value is in fixing the situation. Be sure to fully evaluate the restoration features of an identity protection plan as part of the selection process.

SOURCE: Hazan, J (31 August 2018) "Identity theft protection benefits and the business case for employers" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/identity-theft-protection-benefits-and-the-business-case-for-employers


Here’s how HR pros can breeze through open enrollment

Open enrollment is quickly approaching and can often make the most experienced HR professionals shudder. Read this blog post to learn how you can breeze through open enrollment this year.


Three words have the power to make the most experienced HR professional shudder: open enrollment season.

Open enrollment season is a challenge, no matter how well the HR department prepares. Costs for medical and pharmacy benefits continue to rise, which means there are adjusted employee contributions to present to an audience who’s unlikely to understand the reasoning behind cost increases. There may be new benefits offerings that require employees to pay close attention during the decision-making process. There are open enrollment education campaigns and communications meetings to plan and launch.

Employers with multiple generations of workers must accommodate a wide range of health and welfare benefit needs. New laws (like the federal tax law) plus evolving regulations around benefits add more to HR’s already full plate. (No wonder you don’t have time for lunch.)

But, there’s good news. First, open enrollment is made easier if you plan throughout the year for it. Second, these four tips can help HR professionals make open enrollment much easier.

Review trends and projections ASAP. Focus on the renewal rate long before the renewal date. If your employee benefits renew at the beginning of the year, you may not have received your rate yet. But frankly, by now you should have a very good idea where the rate is projected to land. Reviewing claims and trend data alongside benchmarking and industry analyses throughout the year can help you and your broker project, within a few percentage points, how your renewal rate will increase or decrease.

Your benefits broker should be analyzing your program data on an ongoing basis to estimate the renewal rate and avoid a nasty surprise. The broker should also challenge the first carrier rate offered — there’s almost always room for negotiation. Doing pre-renewal work throughout the year can help you prepare for plan changes and position you to make the best decisions for the organization and employees. It will also help facilitate a smoother open enrollment season.

Keep new benefit options simple. After reviewing benefits and trends, you may find that adding a pre-tax benefit, such as a health savings account, flexible spending account or a health reimbursement account, can help the organization save money while giving employees a way to better plan their healthcare and finances. However, with their alphabet soup acronyms, HSAs, FSAs and HRAs are confusing. Even if you did a whole campaign on the topic for the last open enrollment season, it makes sense to repeat it.

The same goes for voluntary benefits: keep them simple. There is a dearth of voluntary benefits available for a multi-generational workforce. While adding voluntary benefit sounds appealing —especially if your core benefits are changing — which products are right for your organization? Survey your employees to get their feedback; they’ll appreciate that you’re asking for their opinion. Once you tally the feedback, resist the urge to offer a slew of voluntary products. Keeping it simple means adding the one (or a few) that are most desired by your workforce.

Voluntary benefits require significant education and engagement — especially products that are newer to the market. (Student loan debt assistance is a good example.) When it comes to a successful voluntary benefits program, timing is everything. If you plan to add student loan debt repayment, pet insurance, long-term care, or any other new voluntary product, the open enrollment season is not the recommended time to do it. Running a voluntary education and communications campaign and open enrollment off cycle will allow employees to focus on their main menu of options during the open enrollment season, then decide later what they want to add for “dessert.”

Educate. Rinse and repeat. You offer employee benefits to help recruit and retain the best talent. But if your employees don’t understand the core and voluntary benefits you offer, you’re unlikely to increase engagement or retention — and you might even see costs rise.

The health and welfare benefits landscape is changing drastically, which means the onus is on the employer and the HR department to educate the workforce on how the plan is changing (if at all). This means putting decision-support tools, such as calculators, in employees’ hands to help them estimate how much insurance they will need to make the best decision. You could run a whole campaign around that topic.

In addition, try using new methods of communication such as social media messages, text messaging, small-group meetings, your company’s intranet, and one-on-one sessions to help employees avoid mistakes at decision time.

Create a 21st-century experience. Manual benefits enrollment and tracking is so 1999. Moving away from paper-based enrollment will save trees — and possibly your sanity — during the open enrollment season and throughout the year. Benefits administration technology allows employees to ponder their options and enroll at their leisure. A decision-support platform enables better enrollment tracking and eliminates typos and mistakes that can pose major issues for the plan participant and the HR team.

Benefits administration technology provides checks and balances that streamline important tactical functions. Mistakes can put you in a world of hurt when it comes to benefit laws and regulations, such as missing those all-important annual HIPAA and COBRA notifications. You can avoid potential government penalties, fines and employee lawsuits with automatic notifications by the benefits administration platform. Technology can also help you identify ineligible dependents, provide employee data to a COBRA provider if employment ends, interface with your payroll platform — the list is almost endless.

The bottom line: Employees won’t enroll in what they don’t understand — which could lead them to choose a benefits plan that is more expensive, or with fewer options, than what they need. Being prepared for open enrollment season, keeping plans simple, focusing on employee education and communications (and the employee experience) can help mitigate issues for plan participants and HR.

Putting all of your ducks in a row throughout the year will ease headaches during the open enrollment season. You might even be able to take a lunch break.

SOURCE: Newman, H (30 August 2018) "Here’s how HR pros can breeze through open enrollment" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/how-human-resources-can-breeze-through-open-enrollment?feed=00000152-a2fb-d118-ab57-b3ff6e310000


ACA: 4 things employers should focus on this fall

Employers who fail to comply with certain Affordable Care Act (ACA) rules are still subject to penalties. Read this blog post to learn about the four things employers should focus on to avoid financial liabilities.


During the coming months, employers may have questions about whether they still need to worry about the Affordable Care Act (ACA). The answer is yes; the ACA is alive and well, despite renewed legal challenges and the elimination of the individual mandate beginning next year.

While the Tax Cuts and Jobs Act reduced the tax penalty for individuals who don’t have health coverage to $0, effective for 2019, employers are still subject to penalties for failing to comply with certain ACA rules. For example, the IRS is currently enforcing “employer shared responsibility payments” (ESRP) penalties against large employers who fail to meet the ACA requirements to offer qualifying health coverage to their full-time employees. For this purpose, large employers are those with 50 or more full-time or full-time equivalent employees. Here are four things about the ACA that employers should focus on to avoid significant financial liabilities.

1. The IRS is currently assessing penalties using 226-J letters

In 2017, the IRS began assessing ESRP penalties against large employers that failed to offer qualifying health coverage to at least 95 percent of their full-time employees. An ESRP penalty assessment comes in the form of a 226-J letter, which explains that the employer may be liable for the penalty, based on information obtained by the IRS from Forms 1095-C filed by the employer for that coverage year, and tax returns filed by the employer’s employees. The employer has only 30 days to respond to the 226-J letter, using IRS Form 14764, which is enclosed with the 226-J letter. The employer must complete and return IRS Form 14765 to challenge any part of the assessment.

The short timeframe for responding to a 226-J letter means that staff who are likely to be the first to receive communications from the IRS should have a plan in place to react quickly. Training for staff should include information about who to notify and what documentation to keep readily available to support an appeal. Not responding to the IRS 226-J letter will result in a final assessment of the proposed penalty. These penalties can be significant. In the worst case, an employer with inadequate health coverage could pay for the cost of the coverage, as well as penalties of $2,000/year (as indexed) for every full time employee (less 30), even those who received health coverage from the employer.

Depending on the employer’s response to the initial assessment, the IRS will then send the employer one of four types of 227 acknowledgment letters. If the employer disputes the penalty, the IRS could accept the employer’s explanation and reduce the penalty to $0 (a 227-K letter). But if the IRS rejects any part of the employer’s response, the employer will receive either a 227-L letter, with a lower penalty amount, or a 227-M letter, a notice that the amount of the initial assessment hasn’t changed. These letters will explain steps the employer has to take to continue disputing the assessment, including applicable deadlines. The next phase of the appeal might include requesting a telephone conference or meeting with an IRS supervisor, or requesting a hearing with the IRS Office of Appeals.

2. ACA reporting requirements and penalties still apply

Along with the ESRP penalties, the Form 1094-C and 1095-C reporting requirements still apply to large employers. The IRS uses information on Forms 1095-C in applying the ESRP rules and deciding whether to assess penalties against the reporting employer. Large employers must file Forms 1095-C every year with the IRS and send them to full-time employees in order to document compliance with the ACA requirement to offer qualified, affordable coverage to at least 95 percent of full-time employees. Technically, the forms are due to employees by January 31, and to the IRS by March 31, each year, to report compliance for the prior year. In the past, the IRS has extended the deadline for providing the forms to employees, but not the deadline for filing with the IRS. 

Penalties can apply if an employer fails to file with the IRS or provide the forms to employees, and the penalty amount can be doubled if the IRS determines that the employer intentionally disregarded the filing requirement. These penalties can apply if an employer fails to file or provide the forms at all, files and provides the forms late, or if the forms are timely filed and provided, but are incorrect or incomplete.

In some instances, the IRS has assessed ESRP penalties based on Form 1095-C reporting errors. So, in addition to the reporting-related penalties, inaccurate information on Forms 1095-C can lead to erroneous ESRP assessments that the employer will then need to refute, using the IRS forms and procedures described above.

Employers should carefully monitor their ACA filings and reports, and consider correcting prior forms if errors are discovered. Employers should also continue tracking offers of coverage made for each month of 2018, to prepare for compliance with the Form 1095-C reporting requirement early in 2019.

3. “Summary of Benefits and Coverage” disclosure forms are still required

The ACA added a new disclosure requirement for group health plans, called a “Summary of Benefits and Coverage” or “SBC,” that’s intended to help employees make an “apples to apples” comparison of different benefit plan features, such as deductibles, out-of-pocket maximums, and copayments for various benefits and services. This requirement still applies, and SBCs must be provided during open enrollment, upon an employee’s initial eligibility for coverage under the plan, and in response to a request from an employee. The template SBC form and instructions for completing it were updated for coverage periods starting after April 1, 2017. For 2018, a penalty of $1,128 per participant can apply to the failure to provide an SBC as required. 

4. The “Cadillac Tax” has not been repealed

The ACA’s so-called Cadillac tax — an annual excise tax on high-cost health coverage — was initially scheduled to take effect in 2018. The Cadillac tax has been repeatedly delayed, and the federal budget bill passed in January delayed it again through December 31, 2021. Despite the repeated delays, the Cadillac tax has not been repealed and is currently scheduled to apply to health coverage offered on or after January 1, 2022. This might be an issue to consider for employers who are negotiating collective bargaining agreements in 2018 that include terms for health benefits extending beyond 2021. 

While uncertainty continues to surround the ACA, employers should remain aware of continuing compliance requirements to avoid the potentially significant penalties that remain in effect under the ACA. 

Boyette, J; Masson, L (21 August 2018) "ACA: 4 things employers should focus on this fall" (Web Blog Post). Retrieved from https://www.benefitspro.com/2018/08/21/aca-4-things-employers-should-focus-on-this-fall/


Checklist: Updating your employee handbook

Preparing or revising employee handbooks can be daunting and confusing. Guarantee you don’t miss any essential information with this simple employee handbook checklist:


When you are preparing or revising an employee handbook, this checklist may be helpful.

Acknowledgment

  • Do employees sign a signature page, confirming they received the handbook?
  • On the signature page, do employees agree to follow the policies in the handbook?
  • Does the signature page state that this handbook replaces any previous versions?
  • On the signature page, do employees agree that they will be “at-will” employees?
  • Do employees agree that the employer may change its policies in the future?

Wage and hour issues

  • Does the employer confirm that it will pay employees for all hours worked?
  • Before employees work overtime, are they required to obtain a supervisor’s approval?
  • During unpaid breaks, are employees completely relieved of all duties? (For example, while a receptionist takes an unpaid lunch break, this person shouldn’t be required to greet visitors or answer phone calls.)
  • Are employees paid when they attend a business meeting during lunch?
  • Are employees paid for attending in-service trainings?
  • Are employees paid while they take short breaks?

Paid Time Off

  • Has the employer considered combining vacation time, sick time, and personal time into one “bucket” of paid time off?
  • Does the paid time off policy line up with the employer’s business objectives? (For example, does it provide incentives for employees to use paid time off during seasons when business is slower?)
  • Does the handbook say what will happen to paid time off when employment ends? (In Pennsylvania, employers are not required to pay terminated employees for the value of their paid time off. Some employers choose to do this, as an incentive for employees to give at least two weeks’ notice.)
  • If the Family and Medical Leave Act (FMLA) applies to the employer, does the handbook inform employees of their rights?
  • Does the handbook list all types of leave that are available? (For example, does the employer offer bereavement leave? How about leave while an employee serves as a juror or witness? What about municipal laws that provide certain types of leave, such as paid sick leave?)

Reasonable accommodations

  • How should employees request a reasonable accommodation?
  • Does the employer permit employees with disabilities to bring service animals to work (Employers should avoid blanket policies that ban all animals.)
  • May employees deviate from grooming and uniform requirements for a religious reason, or a medical reason? (For example, an employee may have a religious reason to wear a headscarf, even if the employer has a blanket policy that would otherwise prohibit this.)

Discrimination and retaliation

  • Does the employer inform employees that they are protected against discrimination and retaliation?
  • Is there an accurate list of protected categories? (Confirm all locations where the employer does business. Some states or municipalities may provide employees with greater protection than federal law. Are there any categories, such as sexual orientation, that the employer should add?)
  • Do employees have a clear way to report discrimination and retaliation?
  • Is there more than one way to report discrimination and retaliation? (In other words, employees shouldn’t be required to make a report to the same person who they believe is committing acts of discrimination.)

Restrictive covenants/trade secrets

  • Are employees required to keep the employer’s information confidential?
  • Do employees confirm they are not subject to any restrictive covenants (such as non-compete agreements) that would limit their ability to work for the employer?
  • Are employees prohibited from giving the employer confidential information that belongs to a previous employer?

Labor law issues

  • If employees belong to a union, does the employer state that it doesn’t intend for the handbook to conflict with any collective bargaining agreement?
  • Does the employer have a content-neutral policy on soliciting and distributing materials in the workplace? (In general, if an employer wants to limit union-related communications, the employer must apply the same rules to solicitations which don’t involve a union.)
  • Does the handbook accurately reflect whether employees may wear union-related apparel, such as hats, buttons, T-shirts and lanyards?
  • Are employees permitted to discuss their wages with each other? (Some employers try to prohibit this, but the National Labor Relations Act entitles employees to discuss their wages with each other. This rule applies to all employers—whether or not they have a union.)

Other

  • If the employer has a progressive discipline policy, does the employer reserve the right to deviate from this policy?
  • Does the employer reserve the right to inspect company computers and email accounts?
  • Does the employer have a social media policy, or a medical marijuana policy?
  • If the employer has other policies, how do they fit together with the handbook? (Does it make sense to incorporate the policies into the handbook? Or, should the handbook clarify which other policies will remain in effect?)
  • Does the handbook contain any provisions that the employer is unlikely to enforce? (For example, does the handbook prohibit employees from using all social media? Does it prohibit employees from talking on the phone while driving?)

SOURCE: Lipkin, B (20 August 2018) "Checklist: Updating your employee handbook" (Web Blog Post). Retrieved from https://www.benefitspro.com/2018/08/20/is-your-employee-handbook-up-to-date-compare-it-wi/