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IRS Provides Guidance on Treatment of Same-Sex Spouses In Retirement Plans
04/04/2014
By: Jason Lacey

The IRS released its long-anticipated guidance today on the impact of the Windsor case to qualified retirement plans. The guidance resolves a potentially thorny issue on retroactive recognition of same-sex marriages and clarifies when plans must adopt any amendments required to comply with Windsor. Here are the highlights:

Retroactivity Permitted But Not Required. Plans are not required to recognize same-sex marriages for any period before June 26, 2013 (the date of the Windsor decision). They are permitted to designate an earlier date as of which same-sex marriages will be recognized for plan purposes, although the guidance observes that recognizing same-sex marriages for all purposes as of a date earlier than June 26, 2013 may trigger requirements that are difficult to implement retroactively and may create unintended consequences, so caution must be exercised. 

Amendments May Not Be Necessary. A plan must be amended to reflect the outcome in Windsor only if the plan terms are inconsistent with Windsor. For example, a plan that defines a spouse as only a person of the opposite sex would be inconsistent with the outcome in Windsor. But a plan that merely uses the term "spouse" or "lawful spouse" without limiting it to persons of the opposite sex may be ok.

Amendment Timing. To the extent an amendment is required, it generally must be adopted by December 31, 2014. (Special rules may apply for non-calendar-year plans and governmental plans.)

Health and Welfare Plans Unaffected. This guidance addresses only retirement plans and does not impact health and welfare plans. 

The IRS's notice (Notice      Continue Reading...

 
Supreme Court Confirms Severance Payments are Subject to FICA Tax
03/25/2014
By: Jason Lacey

The Supreme Court released its decision today in the Quality Stores case, confirming that severance payments are subject to FICA taxes. 

The payments at issue in the case were fairly typical. A significant reduction-in-force occurred. The employer had two severance plans in place. Officers and managers received between 6 and 18 months of severance payments. Rank-and-file employees received one week of severance pay for each year of service. Payments were reported on W-2s, and taxes were withheld, but the employer later had a change of heart and sued the IRS for a refund of the FICA taxes. Lower courts were sympathetic to the employer's arguments, but the Supreme Court was not persuaded. The decision was unanimous, with one justice not participating.

I don't think the decision itself was a big surprise. Severance payments have generally been viewed as an extension of wage payments and, therefore, subject to the same tax treatment as wages. But if the court had reached a different conclusion, that certainly would have been big news. 

The court's opinion is here.

 
Out and About - March 2014
03/15/2014
By: Jason Lacey

Here's a listing of my scheduled speaking engagements for the next two months. Drop by and say hi, if I'm going to be near you.

  • March 19, 2014 - HIPAA Privacy and Security for Self-Insured Health Plans - Private Client Event
  • April 3, 2014 - Analysis of Auto-Enrollment, Same-Sex Spouse Issues and Other Participant and Beneficiary Issues for Health Plans (panel discussion) - ABA Joint Committee on Employee Benefits Government Invitational Conference - Baltimore, Maryland
  • April 10, 2014 - An Update on 105(h) Nondiscrimination Rules and Other ACA Mandates for Health Plans - Wichita Association of Health Underwriters Symposium - Wichita, Kansas
  • April 10, 2014 - Health Care Reform for Non-ERISA Lawyers - Topeka Bar Association CLE - Topeka, Kansas
  • April 17, 2014 - Health Care Reform Update for Educational Organizations (panel discussion) - Kansas Independent College Association - Topeka, Kansas
  • April 30, 2014 - ERISA Compliance for Health and Welfare Plans - EBIA In-Person Seminar - New York, New York
  • April 30, 2014 - HSAs, HRAs, and Consumer-Driven Health Care - EBIA In-Person Seminar - New York, New York
  • May 14, 2014 - ERISA Compliance for Health and Welfare Plans - EBIA Private Client Event - Orlando, Florida
  • May 14, 2014 - HSAs, HRAs, and Consumer-Driven Health Care - EBIA Private Client Event - Orlando, Florida

 

 
What A Short, Strange Trip It’s Been
02/19/2014
By: Boyd Byers

Has it really only been a week since the Kansas House of Representatives passed House Bill 2453? Supporters said it simply protects religious liberty. Opponents countered that it sanctions discrimination against same-sex couples; allows police officers, fire fighters, and other government employees to refuse to provide basic or emergency services to tax payers; and imposes significant burdens on Kansas employers. A nationwide hullabaloo ensued.

House Bill No. 2453 is titled “an act concerning religious freedoms with respect to marriage.” Section 1 of the bill provides, “Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender: … Provide any services, accommodations, advantages, facilities, goods, or privileges … or provide employment or employment benefits, related to … any marriage, domestic partnership, civil union or similar arrangement.” The term “religious entity” is broadly defined to include: (1) any “religious corporation, association, educational institution or society;” (2) any entity “connected with” such a religious organization; or (3) “a privately-held business operating consistently with its sincerely held religious beliefs.”
 
Section 2 provides that individuals or religious entities that refuse to provide services, employment, or employment benefits “related to” any such relationship, because of their religious beliefs, are shielded from civil claims or government penal action. Section 2 also says that if an employee of any employer (even the government or a non-religious      Continue Reading...
 
IRS Provides Final Guidance on Play-or-Pay Requirements
02/15/2014
By: Jason Lacey

On February 12, 2014, the IRS published its long-awaited final regulations on the employer play-or-pay mandate under health care reform (here). Although the final regulations do not make significant wholesale changes to the proposed regulations, they do provide some important clarifying rules and transitional guidance that will help smooth the path to full implementation of the employer shared responsibility mandate.

Background. By way of brief background, the employer shared responsibility (pay-or-play) mandate under health care reform requires an "applicable large employer" (generally an employer with 50 or more full-time-equivalent employees) to offer affordable, minimum value health insurance coverage to its full-time employees (defined as employees working an average of 30 or more hours per week). Applicable large employers that fail to offer minimum essential coverage to at least 95% of their full-time employees generally face an annual penalty of $2,000 per full-time employee, if at least one of the employer's full-time employees obtains subsidized coverage through the public insurance exchange. Applicable large employers that offer minimum essential coverage to at least 95% of their full-time employees but do not ensure that the coverage is both affordable and provides minimum value generally face a penalty of $3,000 per full-time employee that obtains subsidized coverage through the public exchange. Key issues under these rules include determining who is an applicable large employer, who is a full-time employee, and whether coverage offered to an employee is affordable.

Details, Details. The specific provisions of the final regulations touch on many different areas to a degree      Continue Reading...

 
Out and About - February 2014
02/15/2014
By: Jason Lacey

Here's a listing of my scheduled speaking engagements for the next two months. Drop by and say hi, if I'm going to be near you.

  • February 19, 2014 - Employee Benefits: Affordable Care Act Update (panel discussion) - Kansas SHRM 2014 Employment Law and Legislative Conference, Topeka, Kansas
  • February 19, 2014 - Employee Benefits: DOMA, Cafeteria Plans, and More (panel discussion) - Kansas SHRM 2014 Employment Law and Legislative Conference, Topeka, Kansas
  • February 26, 2014 - Legal Advocacy for Women with Breast Cancer: Insurance and Benefits Issues - ABA Health Law Section 2014 Emerging Issues Conference - Phoenix, Arizona
  • April 3, 2014 - Analysis of Auto-Enrollment, Same-Sex Spouse Issues and Other Participant and Beneficiary Issues for Health Plans (panel discussion) - ABA Joint Committee on Employee Benefits Government Invitational Conference - Baltimore, Maryland
 
What's in a Color???
02/12/2014
By: Donald Berner

A pink hard hat.  Completely harmless on its own, but let's put the pink hat in context.  A pink hard hat is provided to a female field service representative.  The field rep frequently visits work sites and needs to wear PPE, including a hard hat.  She works in a heavily male industry and is one of the few females working in the field.  The pink hard hat is said to be a sign of "inclusion" making the field rep "part of the team" since it symbolizes her acceptance by the male employees in the field.  She's told that only a few of the office staff (also female) have pink hard hats and she is lucky to have one.

So what's in a color?  The color of this hard hat is not just coincidence.  It is gender stereotyping in action.  Stereotyping is nothing new; it is an age-old way for people to categorize information.  Stereotypes are not inherently negative or illegal -- in fact, there are positive associations that can be made.  With that said, employers should be extremely wary of any sort of mass generalizations.  Stereotypes can cover the entire spectrum ranging from gender, age, race, religion, marital status, sexual orientation, national origin and these sort of biases can be especially costly in the workplace. 

Stereotyping can lead to a variety of harms including poor morale, retention difficulty, lost productivity and even litigation.  At its core, stereotyping leads to the creating of factions with the workplace thus undermining a cohesive work environment.  As      Continue Reading...

 
Report from the Legislative Front
02/07/2014
By: Boyd Byers

The 2014 Kansas legislative session is in full swing. Unlike the last two years, where well-supported bills to overhaul parts of the Kansas workers compensation, wage payment, and unemployment laws were on the agenda, this year there are no major employment law bills on the horizon. But there are bills that would have collateral impact on the employer-employee relationship if they become law. One such bill is House Bill 2473, which addresses a variety of issues relating to the possession of firearms. 

Many of the bill’s proposed changes relate to municipal ordinances, the disposition of firearms confiscated by courts, or criminal laws. Most notably, the bill would prevent municipalities from enacting or enforcing laws that restrict the open carrying of firearms.
 
The bill contains several provisions relevant to municipal employees, including the following: 
  • Municipalities are prohibited from requiring an employee to disclose whether the employee possesses a valid license to carry a concealed handgun. 
  • Municipalities may not terminate, demote, discipline, or otherwise discriminate against an employee due to the employee’s refusal to disclose the fact that the employee possesses a valid license to carry a concealed handgun. 
  • Municipalities cannot create or maintain any record of whether an employee possesses a valid license to carry a concealed handgun or that the employee has disclosed that he or she possesses such a license.   
  • Municipalities may not be held liable for any wrongful act or omission related to the actions of any person carrying a firearm, including employees. 
  • Municipalities may prohibit the unconcealed carrying      Continue Reading...
 
EEOC FY2013 Data Shows Growth in EEOC Activity
02/05/2014
By: Donald Berner

The EEOC recently released its FY2013 enforcement and litigation data for public review.  The data shows a decline in the total number of charges filed with the EEOC as compared to the totals for 2010, 2011 and 2012.  Of note, however, is the growth in the number of retaliation charges filed as the statistics continue to show a growth in the number of charges based on retaliation claims.  Employers should take note and ensure their policies and procedures address retaliation concerns.  Furthermore, employers should consider additional training for managers as it relates to potential retaliation.  Click here for the new release and link to the statistical data. 

 
Hidden Bias Revisited
01/31/2014
By: Boyd Byers

Earlier this month The Wall Street Journal ran an interesting article about hidden or unconscious biases and their influence on workplace decisions. Such blind spots can be based on height, tattoos, and gregariousness, as well as protected characteristics such as race and age. Aside from the obvious legal implications, the failure to overcome hidden biases can result in bad decisions, costing companies money. So, as the article reports, more U.S. companies are providing unconscious-bias training. Years ago I wrote an article about hidden bias in the workplace, and what employers can do to identify and address it. (Who knew back then that I was so cutting edge?) You can read it by clicking here: Freakonomics, the Weakest Link, and Implicit Bias.

 
Motivating Your Workforce
01/22/2014
By: Donald Berner

One role of the human resources staff is to assist the leadership team with all things related to employees.  A lot of times you are called upon to take part in unpleasant situations or tasks.  As a result, the human resources team is often looked upon as a negative force.  There are other areas in which HR can provide the leadership team with some coaching.  One of these areas is employee motivation.  I read an interesting story related to employee motivation and approaches of various business executives.  When you have a few minutes it is a good read.  Click here for the story. 

 
Out and About - January 2014
01/15/2014
By: Jason Lacey

Here's a listing of my scheduled speaking engagements for the next two months. Drop by and say hi, if I'm going to be near you.

  • January 21, 2014 - HIPAA's Brave New World for Brokers and Other Business Associates - Private Client Event - Denver, Colorado
  • January 23, 2014 - HIPAA's Brave New World for Brokers and Other Business Associates - Wichita Association of Health Underwriters Monthly Meeting - Wichita, Kansas
  • January 26, 2014 - Healthcare Reform From the Employer’s Perspective (panel discussion) - The Group 2014 Annual Meeting - Phoenix, Arizona
  • January 28, 2014 - HIPAA (panel discussion) - The Group 2014 Annual Meeting - Phoenix, Arizona
  • February 19, 2014 - Employee Benefits: Affordable Care Act Update (panel discussion) - Kansas SHRM 2014 Employment Law and Legislative Conference, Topeka, Kansas
  • February 19, 2014 - Employee Benefits: DOMA, Cafeteria Plans, and More (panel discussion) - Kansas SHRM 2014 Employment Law and Legislative Conference, Topeka, Kansas
  • February 26, 2014 - Legal Advocacy for Women with Breast Cancer: Insurance and Benefits Issues - ABA Health Law Section 2014 Emerging Issues Conference - Phoenix, Arizona

 

 
OSHA Taking Comments on Electronic Submission of Injury and Illness Data
01/14/2014
By: Donald Berner

OSHA has proposed an amendment to the recordkeeping regulations to add a requirement for electronic submission of injury and illness information.  The comment period for this proposed change has been extended through March 8, 2014.  Stay tuned as this proposed change works its way through the regulatory process. 

 
Happy Holidays!
12/20/2013

We wish all of our readers a happy and safe holiday season.  In less than two weeks it will be 2014 so start thinking about your resolutions now.  But first, take a moment to enjoy the holiday. Hopefully your Elf on the Shelf has reported back to Santa Claus that each of you have been "nice" this year.  If you received a report of "naughty" who knows what lump of coal (or paper) could arrive from the EEOC, OSHA, DOL, NLRB, IRS or any other of the alphabet soup agencies.   


(Click Image Above To Be Taken To Site)

 
Editor's Picks: The Best of 2013
12/19/2013

Here's a look back at some of our more popular posts for the year. We wish all of our readers a joyous holiday season and a happy new year!

* Boyd Byers, Biggest Job Interview Blunders (here)

* Boyd Byers, Gaga Over the FLSA Monster (here)

* Jason Lacey, On Facial Hair and Flexible Spending Accounts (here)

* Jason Lacey, What the NSA Learned When They Tapped My Phone This Week (here)

* Don Berner, Secrets, Lies & Whistleblowers (here)

* Boyd Byers, Court Not Goo-Goo Over Gaga - The FLSA Monster Revisited (here)

* Don Berner, Facebook Rants: Protected or Not? (here)

* Boyd Byers, "Fountain Lady" Saga Teaches Lesson in Unemployment Benefit Law (here)

* Don Berner, Holiday Party Fun (here)

 


Authors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
Additional Sources
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Subscribe to Kansas Legislative Insights Image