Don’t Forget About ACA Compliance with Staffing Firm Service Agreements

Affordable Care ActApplicable large employers – those with 50+ full-time employees (ALEs) – under the Affordable Care Act (ACA) must satisfy the law’s “employer mandate,” meaning that they may be assessed penalties for:

  • Failing to offer minimum essential coverage to full-time employees and their dependents
  • Offering eligible employer-sponsored coverage that is not affordable or does not provide minimum value, as defined under implementing guidance

The IRS rules under the ACA teem with definitional challenges for the terms “applicable large employer,” “minimum essential coverage,” “full-time employees,” “affordable” and even “dependent” and I won’t elaborate on the details here.

I want to focus here on what I consider to be the typical ALE that regularly uses the services of a staffing firm to fill some positions or even whole departments and the effect of those workers on the ALE’s compliance with the ACA. Continue Reading

What Employers Need to Know about Zika

zika-01-01The Zika virus — a disease spread primarily through mosquito bites — continues to make international headlines. While the virus is not new, it is new to the Americas. According to the U.S. Centers for Disease Control (CDC), outbreaks have been reported in at least 51 countries or territories. Brazil has been the country most affected by the virus. On July 29, 2016, the Florida Department of Health reported the first known local transmission of the virus through infected mosquitoes in the Wynwood neighborhood of Miami.

Despite the media frenzy, it is important to remember that most cases of Zika are mild. The disease poses the greatest risk, however, for pregnant women and is known to cause devastating birth defects. The CDC recently issued an advisory for pregnant women traveling to affected areas.

I recently wrote a Q&A published by Business & Legal Reports (BLR) to help employers better understand the disease and how to handle issues that are likely to arise in the workplace. You can view the article here.

For Immediate Posting In Your Workplace: Updated Minimum Wage and Polygraph Posters

min wageThe U.S. Department of Labor (DOL) recently published two updated workplace posters: Federal Minimum Wage poster, and Employee Polygraph Protection Act (EPPA) poster. (Note: Federal, state or local governments are exempt from the EPPA so no poster is required for these employers)

The posters have been visually redesigned and includes a QR Code, which when scanned takes the user to the DOL’s Wage & Hour Division pages for “Wages and the Fair Labor Standards Act” and the EPPA.

The updated posters are dated 07/16 and went in effect on August 1, 2016. This means that employers must have these posters up now!

Action steps:

  1. Print out the new poster in color (note: it requires letter size paper) and place over the existing federal minimum wage and EPPA posters in the workplace.
  2. Update the electronic copies of the posters on your intranet site for employees (if applicable).
  3. Update the electronic copies of the EPPA poster on your on-line application site. Remember, the EPPA poster must be visible to your applicants (29 C.F.R. 801.6)

When a Florida Employee Jumps Ship: Welcome to the Temporary Injunction Sprint

jump shipIn today’s legal world, a very small number of lawsuits are litigated through trial, with less than 2% ever materializing into trial. Although for many clients that is good news (since trial can become very expensive very quickly), other clients want their day in court.  However, trial isn’t the only way to get your case heard before a judge! Introducing …. The Motion for Preliminary Injunction!

A preliminary injunction, often referred to as a temporary injunction, is a court order prohibiting an action by a party to a lawsuit until trial or until the case is dismissed for another reason. Essentially, it is a mini trial before the trial, and the court hears these motions on an expedited basis. Continue Reading

Not to BeLabor The Point…but we would appreciate your vote!

vote us-01Bob Marley, Beer & French Fries, Elmer Fudd, Artificial Intelligence and Kublai Khan – What do these have in common? They have all been topics on BeLabor the Point Blog!

If you love reading our blog, vote for us! The American Bar Association is accepting nominations for its “Blawg 100”, an annual list of the 100 best legal blogs. We would greatly appreciate your support in helping our blog make the list. Please consider casting your vote for BeLabor the Point by August 7.

We know that the days of HR professionals can be long, stressful and unpredictable. We hope that BeLabor the Point is a quick, interesting part of your day and provides you with timely, practical business-oriented advice on labor and employment issues.

Sixteen Years after Hurricane Mitch – Extended Work Authorization

hurricaneIt is hurricane season in Florida, but I am writing with emergency preparedness advice. I am writing about the lingering effects of Hurricane Mitch, which struck Central America in 1998, killing more than 11,000 people, destroying hundreds of thousands of homes, and causing more than $5 billion in damage. El Salvador, Honduras, and Nicaragua were hit especially hard, and since 1999, the United States has offered Temporary Protected Status (TPS) to qualifying citizens of these three countries who were present in the U.S., whether lawfully or not, at the time.  The United States has repeatedly extended TPS status in 18 month increments.  In May, the Department of Homeland Security (DHS) extended TPS status for qualifying citizens of Honduras and Nicaragua – from July 6, 2016 to January 5, 2018.  On July 8, DHS also extended TPS status for citizens of El Salvador – from September 10, 2016 to March 9, 2018.

Employers must be aware of the TPS extension announcements because, with each announcement, the DHS automatically extends the work authorization of applicants while they await the production and delivery of new Employment Authorization Documents (EADs). Citizens of Nicaragua and Honduras in the TPS program had EADs that expired July 5, 2016.  The DHS automatically extended their EADs to January 5, 2017.  These individuals will get new EADs valid to January 5, 2018.

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There is a New EEOC “Sheriff” in Town!

sherriffI recently attended a breakfast meeting with Michael Farrell, the new District Director for the Miami office of the U.S. Equal Employment Opportunity Commission. The Miami District Office has jurisdiction over the State of Florida (excluding a few counties in Florida’s Panhandle), as well as Puerto Rico and the U.S. Virgin Islands.  Federico Costales was the Miami District Director for many years.  Upon his retirement a few years ago, a parade of individuals filled the position for short periods of time.  As a result, the District seemed to lose its focus.  This resulted in varying practices among EEOC investigators and a backlog of charges of discrimination awaiting review.  However, Director Farrell is the new Sheriff. After 5 months in office, he has plans to refocus the Miami District Office.

By way of background, Mike is an attorney who spent approximately 16 years with the EEOC’s Miami and Los Angeles Offices as one of its senior trial attorneys. He left the EEOC for private practice, representing employees.  He has now returned to the EEOC to lead the District.

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Non-Compete Agreements Under Attack

“I‘m in Competition with Myself and Losing.” – Roger Waters

fight backAgreements restricting employees’ ability to compete against their employers are commonplace in the American workplace.  They serve as an effective means by which employers can protect their legitimate business interests in, among other things, their customer relationships, their trade secrets and intellectual property as well as their investment in the training and education they often provide employees. 

In most states, courts will enforce a restrictive covenant which is narrowly drafted to protect the employer’s legitimate business interests.  However, non-compete agreements have come under attack recently.  In New York, a legal news publisher recently settled litigation with the New York Attorney General by agreeing not to enforce non-compete agreements with reporters and certain other editorial employees (the argument being that the employer could have no legitimate business interest to protect by enforcing restrictive covenants against employees in those positions).  In Florida, an appellate court recently held that referral sources are not business interests which can be protected with a non-compete agreement.  Several states have enacted legislation restricting the enforceable scope of non-compete agreements including Hawaii (banning the agreements in technology jobs), New Mexico (banning restrictive covenants in health care jobs), Oregon (imposing an 18 month limitation on non-compete agreements) and Utah (limiting restrictive covenants to one year in duration). 

In May, the White House issued an analysis of non-compete agreements which, while acknowledging the usefulness of non-competes, focused on the adverse impact these restrictions have on employees and potentially on the economy. 

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The Writ (and Wisdom) of Wage Garnishments

locked bankYour employee, Debbie Deadbeat, doesn’t pay her debts and gets slapped with a judgment. Before you know it, a process server comes to your office and serves you with a continuing writ of garnishment of Debbie’s salary and wages. First:  What is a Writ?  Second:  What should you do about it?

A Writ is essentially a command from the court.  In this case, a Writ of Garnishment is a command to withhold a portion of the employee’s pay to cover a debt the employee owes to someone else.  When you receive a writ of garnishment, you have 20 days for your lawyer to file a written response to the writ with the court that issued it. (Hopefully, you already have a process in place so that court documents get appropriate attention and don’t languish on someone’s desk.)

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You Want to Raise the Minimum Wage to WHAT?!?!

money happyA year ago, Gravity Payments CEO Dan Price announced plans to raise the salary of every employee to $70,000 by 2017, even entry level staffers.  In order to help offset the increased labor costs, Price announced his intention to lower his own salary from $1,000,000+ to $70,000 (he apparently made around $2,000,000 in 2012).  Needless-to-say, Price achieved instant celebrity status and even graced the cover of Inc. magazine.  Some, on the right, labeled him a socialist. 

Insane, right?  (Do the math:  assuming a work-year totaling 2,080 hours, that is an hourly rate of $33.65.  Overtime amounts to just over $50.00 per hour!)  No way a company can survive if it overpays what the market demands by that amount of money, right?  This must have been a ploy.  Some doubted Price’s true motivations.  It seems that not long before Price’s seemingly mind-boggling announcement, his brother (who also appears to be his partner) sued Price alleging that Price’s personal compensation was excessive, and asked the court to force Price to buy out his minority interest in the company.  Price decided in advance of the trial to turn over company financials to USA TODAY so company performance would be within the public realm.  And the financials offer an interesting glimpse into how the raise has impacted company performance. 

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