IRS to Seize Properties to Settle ACA Penalties

If your business has gotten IRS penalty notices for Affordable Care Act (ACA, or Obamacare) violations, you may soon get what’s called a Letter 5005A — which means pay up or the agency will levy your bank accounts or property to make good on what’s owed.

IRS-announces-cola-adjustmentsLetter 5005A is sent to employers who did not file their ACA forms 1094-C and 1095-C with the federal tax agency under IRC Section 6721 and/or failed to distribute Form 1095-C to employees under IRC Section 6722.

The agency is currently issuing penalty assessments for the 2017 tax year to businesses that failed to meet their obligations under the ACA’s Employer Shared Responsibility provision. When a business fails to fully meet its obligation to provide employees with health insurance, the IRS will send what’s called Letter 226J.

Letter 226J starts the process of potential penalties. These ACA coverage penalties are known as Employer Shared Responsibility Payments (ESRPs). When a company is informed by the IRS that a penalty is being assessed, it has 30 days to challenge the ruling. If it fails to do so, the IRS will demand payment within 15 days.

So far, at least 30,000 companies have been issued penalty claims totaling at least $4.3 billion.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Issues Fluctuating Work Week Proposal

The Department of Labor (DOL) and its Wage and Hour Division (WHD) today announced a Notice of Proposed Rulemaking (NPRM) that would allow job creators to offer bonuses or other incentive-based pay to employees whose hours vary from week to week.

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Labor Secretary Eugene Scalia

The proposal would revise the regulation for computing overtime compensation for salaried, non-exempt employees who work hours that vary each week (i.e., a fluctuating workweek) under the Fair Labor Standards Act (FLSA). It also clarifies that bonus and premium payments on top of fixed salaries are compatible with the fluctuating workweek method of compensation, and that supplemental payments must be included when calculating the regular rate of pay as appropriate under the FLSA. The proposal includes examples and minor revisions to make the rule easier to understand.

“This proposal offers more options for bonus pay and exemplifies the U.S. Department of Labor’s commitment to reduce unnecessary burdens in order to benefit America’s workers,” said Secretary of Labor Eugene Scalia. “At a time when there are more job openings than job seekers, this proposal would allow America’s workers to reap even more benefits from the competitive labor market.”

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Senate Vote Upholds Trump ACA Waiver Rule

One day before open enrollment begins on the Obamacare exchanges, Senate Democrats forced a procedural vote on a Trump-era regulation allowing states to design their own health care programs, and the Republican Senate held mostly firm with only Sen. Susan Collins of Maine siding with the Dems. The final vote was 52-43 affirming the regulation known as “1332 waivers.”

aca-marketplace-opens-nov-1The vote was held under the Congressional Review Act (CRA), which allows a majority of the House and Senate to overturn a regulation. Under terms of the CRA, all new regulations must be reviewed by Congress before taking effect. A simple majority vote of both houses can kill a regulation.

In 2017 when President Trump took office, the Republican-led House and Senate disapproved 14 regulations issued under the Obama administration, only the second time in history the CRA had been used to void regulations.

The term “1332 waivers” refers to section 1332 of the Affordable Care Act (ACA, or Obamacare). In 2018, the Department of Health and Human Services (HHS) rewrote the 2015 guidance governing such waivers. Specifically, the new interpretation allows for the expansion of Association Health Plans (AHPs) and short-term health insurance policies.

The ACA federal health insurance marketplace, or exchange, opens tomorrow, Nov. 1, and runs through Dec. 15. Many state marketplaces will operate through Jan. 31, 2020.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Recovers Record $322M in Lost Wages

The Department of Labor (DOL) today announced that the Wage and Hour Division (WHD) recovered a record $322 million in wages owed to workers in Fiscal Year 2019. WHD also set a new record for compliance assistance events in FY 2019, holding more than 3,700 educational outreach events – including on-the-ground presentations and training sessions – to help job creators understand their responsibilities under the law.

dol-schedules-overtime-rule-public-sessions“Through rigorous enforcement and robust compliance assistance, the U.S. Department of Labor is committed to ensuring that workers receive the wages they have earned,” said U.S. Secretary of Labor Eugene Scalia. “These record-breaking numbers top the department’s totals from last year, which also set records, and confirm our ongoing commitment to strong enforcement and to providing employers with the tools they need to comply with the law.”

“We are delivering a level playing field for employers and employees alike,” said Wage and Hour Division Administrator Cheryl Stanton. “We are delivering more back wages for workers than ever before, and we are steadfastly eliminating any unfair economic advantage employers may try to gain by skirting the rules. We are protecting those who do the right thing, pay their employees what they have legally earned, and operate in compliance.”

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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EEO-1 Pay Data Portal to Remain Open Indefinitely

UPDATE: On Oct. 29, Judge Tanya Chutkan ordered data collection to continue. On. Oct. 25, the EEOC set a final deadline for pay data collection pending court approval: Nov. 11. Previously, on Oct. 8, the EEOC sought court permission to close the pay data collection, reporting that 75.9 percent of potential filers had submitted their data. The plaintiffs in the original lawsuit that reopened the collection process claim the effort is not complete until 98.25 percent submit data. The presiding judge has yet to rule.

The collection of pay data from firms required to submit the EEO-1 Report annually will continue past its deadline of today, Sept. 30, until it reaches its “target response rate,” the Equal Employment Opportunity Commission (EEOC) told the court supervising the program on Sept. 27.

In its most recent required status report for the court, and also in an announcement on the Component 2 filing website, the EEOC said:

… so long as the Court’s order is in effect stating that the collection will not be complete until it reaches what the Court has determined to be the target response rate, the EEOC will continue to accept Component 2 data for 2017 and 2018. EEO-1 eligible employers should continue to submit and certify their Component 2 EEO-1 reports for 2017 and 2018 as soon as possible.

As of Sept. 25, the EEOC said that 39.7 percent of eligible filers had completed submission of the required pay data.

Who Must Submit Data? (more…)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Judge Orders U.S. to Pay $1.6B to Obamacare Insurers

In the ongoing saga over cost-sharing reduction (CSR) payments to health insurers, a federal judge has sided with the insurers and ordered the federal government to cough up $1.6 billion.

health-care-spending-to-rise-5.5%-annuallyThe CSR payments were promised in the Affordable Care Act (ACA, or Obamacare) in exchange for insurers keeping premiums affordable for low-income consumers. The funds, however, were never appropriated by the House of Representatives, where all funding measures must originate.

House Republicans sued over the issue, and the Trump administration withheld payment starting in 2017.

Chief Judge Margaret M. Sweeney of the U.S. Court of Federal Claims yesterday ruled that the “government can create a liability without providing for the means to pay for it.”

Now the U.S. is on the hook for $1.6 billion in CSR funds for 2017 and 2018.

The class action lawsuit is Common Ground Healthcare Corp. v. United States.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Obamacare Premiums to Decline, Insurer Choices to Increase, CMS Says

Today, the Centers for Medicare & Medicaid Services (CMS) announced that the average premium for the second lowest cost silver plan on HealthCare.gov for a 27 year-old will drop by 4 percent for the 2020 coverage year. Additionally, 20 more issuers will participate in states that use the Federal Health Insurance Exchange platform in 2020 bringing the total to 175 issuers compared to 132 in 2018, delivering more choice and competition for consumers. As a result of the Trump Administration’s actions to stabilize the market, Americans will experience lower premiums along with greater choice for the second consecutive year, the CMS announcement states.

aca-marketplace-opens-nov-1“Lower costs and more options for American patients are a key piece of President Trump’s healthcare vision: an affordable, patient-centric system that puts you in control, and treats you like a person, not a number,” said Health and Human Services (HHS) Secretary Alex Azar.

“The president has delivered lower costs and more options under the Affordable Care Act (ACA) for two straight years, and this work reflects his overall approach to healthcare: protect what works and fix what’s broken. The ACA simply doesn’t work and it is still unaffordable for far too many. But until Congress gets around to replacing it, President Trump will do what he can to fix the problems created by this system for millions of Americans.”

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Proposes to Allow Electronic Retirement Plan Disclosures

Consistent with President Donald J. Trump’s Executive Order 13487, Strengthening Retirement Security in America, the Department of Labor (DOL) today announced a proposed rule to allow online retirement plan disclosures to reduce printing and mail expenses for job creators and make disclosures more readily accessible and useful for America’s workers.

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Labor Secretary Eugene Scalia

Reflecting modern internet technology, the proposal offers a safe harbor for employers who want to make retirement plan disclosures accessible on a website, rather than sending volumes of paper documents through the mail. Plan participants would be notified that information is available online, including instructions for how to access the disclosures and their right to receive paper copies of disclosures. The proposal includes additional protections for retirement savers, such as standards for the website where disclosures will be posted and system checks for invalid electronic addresses.

“This proposal offers Americans choice in how they receive important retirement information,” said Secretary of Labor Eugene Scalia. “By adjusting for modern technology, the Department can help save billions of dollars in costs for the U.S. economy. The U.S. Department of Labor is focusing on rulemaking that eliminates unnecessary burdens while furthering the needs of the wage earners, job seekers, and retirees of the United States.”

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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NLRB Mandates E-Filing

The National Labor Relations Board (NLRB) has announced a new policy requiring that all affidavits, correspondence, position statements, documentary or other evidence in connection with unfair labor practice or representation cases processed in regional offices be submitted through the agency’s electronic filing (e-filing) system.

nlrb-seeks-overturn-of-Obama-joint-employer-standardOn Feb. 24, 2017, the NLRB made certain procedural amendments to Part 102 of its Rules and Regulations. These changes, which became effective March 6, 2017, included a provision requiring the e-filing of documents before the board. Today’s memorandum completes the implementation of that provision.

Electronic filing provides a streamlined procedure to automatically store documents received by the agency. Use of this automatic electronic filing system will ensure both the integrity and accuracy of regional office case files.

This system will also reduce the time and effort expended by regional office employees in scanning or otherwise ensuring that documents were properly placed in the appropriate electronic case file. The automated filing process allows Agency employees to devote more time to substantive case-handling matters, in furtherance of the Board’s strategic goals to reduce case processing time.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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EEOC September Litigation Blitz Returns to Normal

After two years of an upswing in fiscal-year-closing lawsuits, the Equal Employment Opportunity Commission (EEOC) returned to a more normal pace this September with just 52 lawsuits filed, compared to 87 in 2018 and 86 in 2017, according to Bloomberg Law.

EEOC-lawsuits-return-to-normalA low of 31 lawsuits was recorded in September 2016, but 2019 more resembles 2012 to 2015, which saw an average of 58 lawsuits filed.

The Americans with Disabilities Act (ADA) led the field, with 20 of the lawsuits alleging discrimination based on a disability or perceived disability. Workplace harassment and job retaliation also figured prominently.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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