The uncertainty of the implications of the Affordable Care Act (health care reform), the current debate over the debt ceiling, federal sequestration and the ever-changing regulatory and legislative environment continue to serve as key sources of confusion and concern for businesses and organizations across the U.S.
On Wednesday, October 9, 2013, from 10 – 11 am eastern, join members of Drinker Biddle’s Lobbying & Advocacy Team and Employee Benefits & Executive Compensation Practice Group for a complimentary webinar that will review the current state of federal fiscal and health policy and outline what you and your company or organization need to know about what’s ahead. The webinar also will provide the tools you need to successfully navigate these unpredictable business, economic and political climates.
Heather B. Abrigo, Counsel, Drinker Biddle
Jodie Curtis, Senior Government Relations Director, Drinker Biddle
Nick Araco, Director of Growth Strategies, Drinker Biddle
Date: Wednesday, October 9, 2013
Time: 10 – 11 a.m. eastern
Understanding and Preparing for the Changes Coming in 2014
The Patient Protection and Affordable Care Act (ACA) represents the most dramatic change in U.S. health care policy since the introduction of Medicare in 1965. The ACA contains many requirements that can significantly impact your company’s bottom line.
Join Drinker Biddle and The CEO Trust for a panel discussion on some of the key provisions of the ACA and what your business can and should be doing to address them. Topics will cover:
- Required changes in employee health plan options
- Formulating an insurance strategy tailored to meet the needs of your business
- The latest from Capitol Hill and last minute efforts to meet the January 2014 insurance exchange deadline
Date: Tuesday, October 15, 2013
Time: 8 – 8:30 a.m.
Location: Drinker Biddle & Reath
One Logan Square
18th & Cherry Streets
Philadelphia, PA 19103-6996
Chuck Steege, President, SFG Wealth Planning Services, Inc.
Matt Amodeo, Partner, Drinker Biddle
Julie Allen, Government Relations Director, Drinker Biddle
Warren Geller, CEO, Englewood Hospital and Medical Center
Joan Neri, Counsel, Drinker Biddle
Scott Welks, Principal and Consulting Actuary, Milliman
By: Laurie A. Holmes and Aaron M. Moyer
Familiar with this? It’s time to update your affirmative action plans. For the women and minorities plan, you gather your applicant data, prepare spreadsheets and update your written materials to reflect new goals and changes in your recruiting sources. For the veterans and individuals with disabilities plan, you update a bit and you’re done. Starting early next year, however, the rules will change making updates more onerous for employers. On August 27, 2013, the Office of Federal Contract Compliance Programs announced final rules for federal contractors regarding hiring and employment of disabled individuals and protected veterans and imposing new data retention and affirmative action obligations on contractors. The rules are expected to be published in the Federal Register shortly and will become effective 180 days later.
The key changes include:
- Benchmarks. Contractors must establish benchmarks, using one of two methods approved by the OFCCP, to measure progress in hiring veterans. Likewise, contractors must strive to hire individuals with disabilities to comprise at least seven percent of employees in each job group. The OFCCP says these are meant to be aspirational, and are not designed to be quotas.
- Data Analysis and Retention. Contractors must document and update annually several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans that they hire. Likewise, for individuals with disabilities, contractors are required to conduct analyses of disabled applicants and those hired. Such data must be retained for three years.
- Invitation to Self-Identify. Contractors must invite applicants to self-identify as protected veterans and as an individual with a disability at both the pre-offer and post-offer phases of the application process, using language to be provided by the OFCCP. This particular requirement worries employers who know that the less demographic information they have about applicants, the better – especially when the application is denied. Contractors must also invite their employees to self-identify as individuals with a disability every five years, using language to be provided by the OFCCP.
Additional information, including with respect new requirements such as incorporating the equal opportunity clause into contracts, job listings, and records access, can be found here (http://www.dol.gov/ofccp/regs/compliance/vevraa.htm) and here (http://www.dol.gov/ofccp/regs/compliance/section503.htm).
Contractors with an Affirmative Action Plan already in place on the effective date of the regulations will have additional time, until they create their next plans, to bring their plan into compliance. However, whether they have a current Affirmative Action Plan or not, federal contractors should begin looking at these new rules now and take steps to ensure they are in compliance.
By: Mark D. Nelson
Effective January 1, 2015, almost 2 million home health and personal care workers will be entitled to be paid at least the federal minimum wage and receive overtime pay, under a final rule announced by the U.S. Department of Labor on September 17. According to new Secretary of Labor Thomas Perez, the final rule will give home care workers “parity” with direct care workers who work at institutional settings and will “ensure that direct care workers are available to elderly people who want to remain in their homes.”
The new rule will apply to all home care workers, including live-in workers, who are employed by a third party such as a home health agency. The rule will also require the family of an elderly or ill person when the worker performs medical duties or primarily performs domestic duties that benefit other household members.
According to DOL, the “vast majority” of the affected workers are employed by third parties and only a “very small” number of workers employed by families will be affected by the rule. Supporters of the rule argue that it will lift home care workers out of poverty and keep them in the workforce, thereby enabling them to help elderly and ill people in the comfort of their homes. Opponents assert the rule will reduce the work hours to avoid overtime and will result in pay reductions to home care workers, force patients out of their homes and into institutions and reduce business for home health agencies. Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, stated that DOL has estimated the rule would increase the cost of home care by $2 billion over the next decade.
By: Marion B. Cooper
August was a busy month for New Jersey lawmakers with Governor Christie signing two bills, one regarding pay equity and one concerning personal social media accounts that he had conditionally vetoed earlier, and a bill regarding the impact of an employer’s failure to respond to a request for information for purposes of unemployment insurance benefits. As described below, each bill will impact an employer’s compliance obligations and should be appropriately integrated into management practices.
- Assembly Bill No. 2648 (A-2648), signed by the Governor on August 29, 2013, is a pay equity protection measure amending the New Jersey Law Against Discrimination (NJLAD) to bar employers from retaliating against employees who share information about the job title, occupational category or rate of compensation and other employment matters, or the gender, race or other protected characteristic of current or former co-workers when the inquiries are made to assist in investigating the possibility of unlawful discriminatory treatment in pay, compensation, bonuses, or benefits. It took effect upon enactment.
While the previously vetoed version of A-2468 would have protected those discussions under the State Conscientious Employee Protection Act, Governor Christie suggested that the amendment was more consistent with the underlying goals of the NJLAD, because that is the statute under which workplace discrimination claims are brought. Governor Christie noted that “[t]oo often in our past, women have seen their incalculable contributions to the workplace insufficiently compensated. We cannot allow that progress to succumb to ignorance.”
- Assembly Bill No. 2878 (A-2878), also signed by the Governor on August 29, 2013, prohibits employers from requiring or requesting any employee or prospective employee to provide or disclose the user name or password or in any way provide the employer access to a personal account through the use of an electronic communications device. A-2878 further prohibits employers from retaliating or discriminating an individual who has, or was about to:
- Refuse to provide access to a personal social media account;
- Participate in any complaint, investigation, proceeding or action concerning a violation of the act; or
- Otherwise oppose a violation of the act.
Violations under the act are enforced through the Department of Labor and Workforce Development and violating employers could be subject to civil penalties up to a maximum of $1,000 for the first violation and $2,500 for each additional violation. Governor Christie’s veto of the original version of the bill was based on a determination that it was overbroad and needed to provide for specific employer rights.
A key employer protection in A-2878 allows employers to investigate compliance with applicable laws, regulations or “prohibitions against work-related employee misconduct” when the employer receives specific information regarding an employee’s personal social media account, and also to investigate an employee’s actions related to the “unauthorized transfer of an employer’s proprietary information, confidential information or financial data to a personal account.” The bill further clarifies that the employer is not prohibited from “viewing, accessing, or utilizing information about a current or prospective employee” that is available in the public domain.
New Jersey thus became the ninth State this year, and the twelfth State overall to enact legislation prohibiting employers from seeking or accessing current or prospective employees’ personal social media account information. Federal legislation similar to these state social media account password protection laws has been introduced, including: the Social Networking Online Protection Act (HR-537) and the Password Protection Act of 2013 (HR-2077).
- Senate Bill No. 2739 (S-2739), signed by the Governor on August 19, 2013, amends the New Jersey Unemployment Compensation Law to ensure that employers promptly respond to Division of Unemployment and Temporary Disability Insurance (Division) requests for information about claims for unemployment benefits. In accordance with this Bill, if the Division erroneously pays a benefit because the employer failed to respond in a “timely or adequate manner” to a Division request for information related to the claim and the employer has an established pattern of failing to respond to these requests, the Division is prohibited from relieving the employer’s account for the charged benefit payments. A benefit payment is “erroneous” when it would not have been made but for the employer’s failure to make a “timely and adequate” response. The “pattern of failing” is established when the employer repeatedly fails to respond to Division requests for information related to a claim for benefits, unless the number of failures is less than three or less than two percent of the number of Division requests, whichever is greater.
The act does not specify what is considered “timely or adequate,” but pre-existing statutory language provides an employer with ten days after the Division request to respond before the Division relies entirely on other sources to make a determination of wages and time worked. Employers who previously may have failed to respond because it might result in a denial of benefits to the claimant now have more of an incentive to comply.
Los Angeles Partner Kate Gold and associate Elena Min recently authored for The Daily Journal an article on changes to Section 218.5 of California’s Labor Code. The change, enacted through Senate Bill 462, curbs an employer’s ability to recover prevailing party attorney fees and costs in a lawsuit seeking unpaid wages, fringe benefits, or health and welfare or pension fund contributions.
Scheduled to go into effect January 1, 2014, the amendment limits recovery of attorney fees and costs by a prevailing employer “only if the court finds that the employee brought the court action in bad faith.”
Kate and Elena said the amendment “strips employers of one possible weapon in their arsenal for deterring nonmeritorious wage and hour claims.”
“Attorneys for plaintiffs and defendants will likely disagree with the consequences of the amendment as well as its premise – that the two-way fee recovery of existing Section 218.5 has had a chilling effect on employees’ wage and hour claims under that section,” they wrote. “But the bottom line is that “bad faith” is a high standard to meet and the amendment makes fee recovery in Section 218.5 actions an uphill battle for employers.”