CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘Health insurance’

Is Wellness Activity Participation Compensable?

Posted on: September 25th, 2018

By: Joyce Mocek

The Department of Labor (DOL) recently issued an opinion letter on whether employees must be compensated under the Fair Labor Standards Act (FLSA) for the time they spend participating in wellness activities.   In this inquiry, the employer advised the DOL that it allowed its employees to participate in wellness programs including “biometric screening,” (ie cholesterol levels, blood pressure and nicotine usage screening), during and outside of regular work hours.  The screening information could result in a decrease in the employee’s health insurance deductible.  The screening was not related to the employee’s job, there were no restrictions on the time an employee could participate in the events, and participation was not required by the employer.

In its opinion letter, the DOL noted the employer received no financial benefit as a result of the employee participation in the activities, and the employee’s voluntary participation predominantly benefited the employee.  The employer did not require the employee to perform any job related duties while they were participating in the activities.  Thus, since the activities predominantly benefited the employee, the DOL opined that the time the employees spent participating in the wellness program did not constitute worktime under the FLSA.  Further, since the employee was relieved of all duties, and not restricted in the amount of time they could participate in the activities, the time spent was considered non-compensable “off  duty” time.

Employers with wellness programs should review their policies concerning such programs, to ensure they follow the guidance recently outlined by the DOL in this opinion letter to avoid potential FLSA issues.

If you have any questions or would like more information, please contact Joyce Mocek at [email protected].

USCIS Creates Another Roadblock for Legal Immigrants

Posted on: August 8th, 2018

By: Kenneth Levine

A proposed Trump administration change to the “public charge” regulations, expected to be issued within the next few months, will dramatically alter the process for how Immigration Officers determine eligibility for citizenship or permanent residency.  USCIS designates an applicant as a “public charge” if they are likely to become predominantly dependent on government benefits for long term survival.  Currently, USCIS Officers focus on the petitioning sponsor’s income (or a cosponsor’s income if the petitioner’s income falls below the required amount) in assessing eligibility.  Section 212(a)(4) of the Immigration and Nationality Act currently allows USCIS to deem a permanent residency applicant ineligible if they are likely at any time to become a “public charge.” Although the current regulation appears to afford an Immigration Officer considerable discretion in assessing an Applicant’s public charge prospects, in practice there is virtually no discretion.  In other words, if the petitioner or the co-sponsor’s current income satisfies the affidavit of support, then USCIS will typically have no justifiable basis to deny an application on public charge grounds.

The new regulations would substantially redefine “public charge” criteria by creating new grounds of ineligibility if the foreign national (or immediate family members) ever obtained health insurance through the Affordable Care Act (ACA) or signed up for supplemental assistance programs for financial and/or nutritional assistance for their U.S. citizen children.  Moving forward, USCIS Officers will be allowed to analyze a foreign national applicant’s income, employment history, job skills, health status, assets, and any family history of having received public health benefits (no matter if they were legally entitled to receive such benefits).  This new approach will dramatically expand USCIS authority to deny a case based on the arbitrary whims of an Officer who looks unfavorably on an applicant’s job history or the amount of money they have saved in the bank.

At this point it is unknown whether there will be different public charge standards for permanent residency or citizenship applicants.  Regardless, FMG Immigration Attorneys fully expect that federal litigation will ensue once USCIS attempts to implement the new public charge regulations.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Not Just for Trust Fund Babies Anymore

Posted on: May 3rd, 2018

By: Bryce M. Van De Moere

Even with the existence of the Affordable Care Act, the preferred way to get health benefits is still through your employer.  Health insurance packages have become an integral part of employee compensation.  As employers continue to offer health benefits to their employees, liability for employers has also increased exponentially; not only in terms of how to shoulder the premium increases brought on by the utilization of an aging workforce but also exposure to legal action brought on by perceived deficiencies in the quality of the benefits.

Welfare Benefit Plans are described in Title 1 of the Employee Retirement Income Security Act of 1974 (ERISA) which governs any plan, fund or program that provides (among other things), “medical, dental, prescription drugs, vision, psychiatric, long term health care, life insurance or accidental death or dismemberment benefits.” Regulation of these plans is federally governed and penalties for violation of the regulations can be severe. Further complicating an already difficult area, many employers are approaching health insurance carriers and contracting with them directly.  They are a signatory to a contract to offer benefits to an employee group and as such can be liable for claims made by their employees.   As such, when representing employers, especially those in the public sector, such as Municipalities and School Districts who have a unionized employee base with whom they are required to collectively bargain, it is of vital importance that those employers be shielded from liability, not only from their own employees but also from the penalties associated with failure to comply with state and federal laws that govern those benefit plans and the agencies that enforce those penalties.

One option employers should consider is banding together and pooling their employees by forming or joining a VEBA, or Voluntary Employee Benefit Association. A VEBA is an Internal Revenue Code Section 501(c)(7) Trust that is generally tax exempt and defined as “a mutual association of employees providing certain specified benefits to its members or their designated beneficiaries which may be funded by the employees or their employer.”  VEBA’s are legal entities that take the place of the individual employer.  Much like incorporation protects your personal assets, a VEBA can protect the employer’s business.

A VEBA is guided by a Board of Trustees made up of the member employers (and sometimes union representatives.)  The Trust is now the signatory to the contract.  The employer and their employees become a part of a much larger group or “pool” buying benefits in bulk which helps promote price stabilization and increases negotiation power. The Board of Trustees is also allowed to delegate the responsibilities of the Trust, which means they can hire a Trust ERISA counsel and Trust auditor to ensure regulatory compliance and a Trust Benefit Administrator to manage the claims of the benefit plan members.  This further shield’s the employer from responsibility and liability.

This is just one of the vehicles available for the management of employee benefit plans. If you have questions about this or other options available under the Internal Revenue Code, feel free to contact me at [email protected].