Health & Welfare Plans Newsletter

November 13, 2017

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Jobs

Senior Pension Administrator
Scholz & Friends Enlightened Retirement Group, Inc.
in TX

Field Relationship Manager - 493574
Mutual of Omaha
in NE

Defined Benefit Conversion Specialist
Principal Financial Group
Telecommute

Financial Analyst I
Principal Financial Group
Telecommute

ERISA Attorney
Archer, Byington, Glennon & Levine, LLP
in NY

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[Guidance Overview]

IRS Releases Sample Letter 226J, Sheds More Light on Employer Mandate Penalty Enforcement
"The package containing Letter 226J will include ... Form 14764 [which] is the vehicle ALE members will use to respond to the Letter 226J regardless of whether the ALE member agrees or disagrees with the proposed penalty amount. Additionally, the IRS package will include Form 14765 which will contain a list of the ALE member's assessable full-time employees for the year in question."
Accord

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[Guidance Overview]

IRS Letter 226J: What About the Constitutional Due Process Hurdles to Collecting Employer Shared Responsibility Excise Taxes?
"Years ago, the IRS created substitutes for MAGI to allow employers who chose to use the substitutes to determine whether they should reduce the cost of coverage to make it affordable for particular employees.... The substitutes may be substantially lower than actual MAGI. These are not really safe harbors in the context of assessing excise taxes, because they may subject employers to greater excise taxes than authorized by PPACA.... PPACA Section 1411 requires certifications to inform employers that employees have been conditionally approved for premium tax credits, and to give employers an appeal process. In most states, those notices were never sent, or were sent late. This was an important part of the procedural due process establish by PPACA, and the failure is not inconsequential."
Tucker Ellis LLP

[Guidance Overview]

New York City Expands Earned Sick Time Act to Assist Employees and Family Members Who Are Crime Victims
"The amendments will permit employees to use accrued sick/safe time as a result of the employee or the employee's covered family member being a victim of family offense matters, sexual offenses, stalking, or human trafficking."
Fox Rothschild LLP

Chronic Back Condition, Disputed Notice Issues Leave FMLA Claims Standing
"Given that the employee called in every day to his supervisor to say he could not work ... as well as provided two doctor's notes, the court found material fact issues on whether his employer had notice of his injuries and need for FMLA leave, especially since it provided him a phone number to call to apply for short-term disability. And though his employer claimed it had a legitimate, nondiscriminatory reason for firing the employee five months' later (recent excessive absences), the employer counted against him absences that occurred during the period of his potentially FMLA-qualifying leave." [West v. Pella Corp., No. 16-154 (W.D. Ky. Oct. 20, 2017)]
Wolters Kluwer Law & Business

What Could the End of DACA Mean for Your Employees' Health and Welfare Benefits?
"[E]mployers need to be aware of some benefit issues, should the rescission remain unchanged. For instance, do the normal rules for continuation of health care coverage under COBRA apply to DACA-covered employees when their work permits expire? That's just the tip of the iceberg.... It may be difficult to aim an approach solely at DACA-covered employees, given that employers cannot ask employees whether their work permits are due to DACA or some other work visa program, and most employers may not want non-DACA-covered employees to be inadvertently included in the approach."
Willis Towers Watson

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How Employees Can Make Themselves Ineligible for HSA Contributions
"In 2004, the [IRS] confirmed that an employer only has three responsibilities regarding HSA eligibility and communicating this to the HSA custodian: [1] Ensure the employee is covered by an HSA-eligible high-deductible health plan (HDHP) sponsored by the employer; [2] Confirm that the employee is not covered by any non-HDHP coverage sponsored by the employer; and [3] Provide the employee's age (for purposes of the catch-up contribution). So why should employers care about HSA disqualification if it is primarily an employee concern?"
HR Daily Advisor

Congress Tackles Federal Paid Leave with Flexible Work Standards Bill
"[A] qualified flexible workplace arrangement plan would be governed by ERISA ... [and] would need to comply with standard provisions for such matters as documentation, reporting, disclosure, and fiduciary responsibility, and would be subject to ERISA's enforcement provisions. The full extent of ERISA's preemption may yet need to be determined."
Ballard Spahr LLP

House Tax Bill Clears Committee, Senate Unveils Its Own Bill
"Significant for employer plan sponsors is that the Senate's proposal does not eliminate dependent care flexible spending accounts. The original House bill eliminated the ability of employers to sponsor these programs, which allow working parents to pay up to $5,000 of daycare expenses tax free."
Lockton

Benefits in General

Secretary Acosta to Testify at Hearing on DOL
"Committee on Education and the Workforce Chairwoman Virginia Foxx (R-NC) today announced that the committee will hold a hearing on Wednesday, November 15 at 10 a.m. on 'Examining the Policies and Priorities of the U.S. [DOL].' The Honorable R. Alexander Acosta, Secretary, U.S. Department of Labor, will testify. The hearing will take place in room 2175 of the Rayburn House Office Building."
Committee on Education and the Workforce, U.S. House of Representatives

Executive Compensation
and Nonqualified Plans

From Fourth Circuit: Top-Hat Plan Can Change Crediting Rate Used to Calculate a Participant's Payout
"After plaintiffs retired, the Plan's board amended the crediting rate again which resulted in a more flexible crediting rate linked to a participant's selection of one (or more) of four valuation funds ... But this arrangement included more volatility and risk, including the possibility of losing value in a participant's notational account. Because of the lack of predictability, the annual payments could no longer be made strictly equal.... The district court denied plaintiffs' motion for class certification ... granted summary judgment to the company, and held that the Amendment was valid." [Plotnick v. Computer Sciences Corp. Deferred Comp. Plan for Key Executives, No. 16-1606 (4th Cir. Nov. 8, 2017)]
Roberts Bartolic

Differences in Amended House Bill, Senate Proposal, Place Future of Executive Compensation Changes in Limbo
"While the House decided to remove the proposed changes to the [NQDC] rules and leave in place the repeal of the 162(m) performance-based compensation exception, the Senate version kept intact the NQDC proposed changes and expanded the changes to 162(m). To meet Congress's aggressive timetable for tax reform passage, if there are differences in the bills, it is speculated that the House would then move to adopt the Senate version of the bill, in its entirety, rather than have a conference committee to resolve those differences. Thus, all eyes are on the Senate version to see if the executive compensation provisions are amended during the markup[.]"
Willis Towers Watson

GOP Tax Proposal Eviscerates Current Executive Compensation Designs and Practices -- Perhaps? (PDF)
10 pages. "[C]ompanies should review their compensation -- both outstanding and to be granted -- and consider whether any changes are advisable to lessen the impact of the Tax Proposal changes. [A chart] lays out the key issues most likely to be faced by the majority of public companies if the NQDC rules are enacted, but there will be specific facts and circumstances that could warrant other potential action that companies may need to consider as well."
ExeQuity

[Opinion]

An Obituary for Equity Compensation, d. 2017
"Stock Options, Restricted Stock Units, young Performance Units and their cousin Non-Qualified Deferred compensation tragically died in 2017 as an unintended consequence of colliding with the 429 page U.S. tax reform ... Employee Stock Purchase Plan is currently in critical condition at a local hospital.... The proposed tax reform bill of 2017 would eliminate many of the time-tested and successful components of equity compensation, effectively removing one of the three legs of many companies' three-legged stool of compensation philosophy."
Performensation

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2017 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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