On Aug. 31, 2017, a federal judge in Texas struck down the Department of Labor’s (DOL) 2016 overtime rule, stating that the DOL had exceeded its authority by issuing a new salary level requirement for white collar exempt employees.
The DOL is unlikely to appeal this court decision because the ruling does not put into question the DOL’s general authority to set any type of salary limit.
However, the DOL has also signaled its intention to propose a new overtime rule. The DOL has published a request for information (RFI) to invite the public to comment on the issues the DOL should consider before proposing a new overtime rule.
Employers are not required to comply with the 2016 overtime final rule. This ruling ensures that the rule will not take effect. Employers should monitor developments on a new overtime rule proposal.
DOL Rule on White Collar Exemptions
The Fair Labor Standards Act (FLSA) establishes minimum wage and overtime pay protections for many workers in the United States. However, the FLSA exempts certain workers, such as white collar employees, from these protections. The white collar exemptions apply to certain executive, administrative, professional, outside sales, computer and highly compensated employees.
To qualify for the executive, administrative or professional (EAP) exemption, an employee must meet a salary basis test, a salary level test and a duties test. The DOL’s 2016 overtime rule would have increased the required salary level from $455 per week ($23,660 per year) to $913 per week ($47,476 per year). Highly compensated employees (HCEs) must also satisfy the salary basis and duties tests to be considered exempt, but a different salary level applies to them. The DOL rule would have increased the required salary level for highly compensated employees from $100,000 per year to $134,004 per year.
Challenges to the 2016 Overtime Rule
In September 2016, a coalition of 21 states and a number of business groups filed two separate lawsuits challenging the new rule. These two lawsuits were combined in October. On Nov. 16, 2016, the court held a hearing on whether to grant an emergency injunction blocking the implementation of the rule. The judge presiding over the case issued his written ruling granting the injunction on Nov. 22, 2016.
On Aug. 31, 2017, the same federal court struck down the 2016 overtime rule stating that the DOL exceeded its authority when imposing the $913 per week ($47,476 per year) and $134,004 per year salary level limits.
The Future of FLSA Overtime Regulations
On July 26, 2017, the DOL published an RFI regarding the overtime exemptions for executive, administrative, professional, outside sales and computer employees. The purpose of the RFI is to gather information from the public before formulating a proposal to amend the FLSA or its regulations.
The RFI does not place any responsibilities on employers. However, any individual or organization interested in responding to the RFI must submit their comments to the DOL by Sept. 25, 2017. The DOL is encouraging individuals and organizations to submit their comments electronically, using the instructions in the Federal eRulemaking Portal.
When submitting a comment, employers should remember that, once submitted, comments are considered public records and will be published without editing. This includes any personal information provided.
More Information
Please contact Scurich Insurance for more information regarding current overtime rules, compliance with the FLSA or the RFI on overtime regulations.
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Final Forms for 2017 ACA Reporting Released
On Sept. 28, 2017, the Internal Revenue Service (IRS) released final 2017 forms for reporting under Internal Revenue Code (Code) Sections 6055 and 6056.
- 2017 Forms 1094-C and 1095-C are used by applicable large employers (ALEs) to report under Section 6056, as well as for combined Section 6055 and 6056 reporting by ALEs who sponsor self-insured plans. Related draft instructions were released on Aug. 31, 2017, and have not been finalized at this time.
- 2017 Forms 1094-B and 1095-B are used by entities reporting under Section 6055, including self-insured plan sponsors that are not ALEs. Related draft instructions were released on Aug. 31, 2017, and have not been finalized at this time.
The 2017 forms are substantially similar to the 2016 versions, except that sections related to expired Section 4980H Transition Relief were removed.
ACTION STEPS
Employers should become familiar with the revisions to the forms, and prepare to file these final versions in early 2018.
Background
The Affordable Care Act (ACA) created reporting requirements under Code Sections 6055 and 6056. Under these rules, certain employers must provide information to the IRS about the health plan coverage they offer (or do not offer) or provide to their employees. Each reporting entity must annually file all of the following with the IRS:
- A separate statement (Form 1095-B or Form 1095-C) for each individual who is provided with minimum essential coverage (for providers reporting under Section 6055), or for each full-time employee (for ALEs reporting under Section 6056); and
- A transmittal form (Form 1094-B or Form 1094-C) for all of the returns filed for a given calendar year.
Reporting entities must also furnish related statements (Form 1095-B or 1095-C, or a substitute form) to individuals.
Forms must generally be filed with the IRS no later than Feb. 28 (March 31, if filed electronically) of the year following the calendar year to which the return relates. Individual statements must be furnished to individuals on or before Jan. 31 of the year immediately following the calendar year to which the statements relate.
2017 Forms and Instructions
The 2017 forms, as well as the 2017 draft instructions, are substantially similar to the 2016 versions. However, note the following changes:
- Section 4980H Transition Relief. Several forms of transition relief were available to some employers under Section 4980H for the 2015 plan year (including any portion of the 2015 plan year that fell in 2016). However, no Section 4980H transition relief is available for 2017. As a result, the 2017 draft instructions for Forms 1094-C and 1095-C were revised to remove references to Section 4980H transition relief. In addition, Form 1094-C has been revised to remove references to this transition relief. Specifically, the following two sections on Form 1094-C related to this transition relief have been designated as “Reserved” and should not be used: Part II, in the “Certifications of Eligibility” Section on Line 22, Box C; and Part III, in the “ALE Member Information – Monthly” table, column (e).
- Instructions for Recipient. Both individual statements (Forms 1095-B and 1095-C) include an “Instructions for Recipient” section. On both of the 2017 Forms 1095-B and 1095-C, the following paragraph was added: “Additional information. For additional information about the tax provisions of the Affordable Care Act (ACA), including the individual shared responsibility provisions, the premium tax credit, and the employer shared responsibility provisions, see www.irs.gov/Affordable-Care-Act/Individuals-and-Families or call the IRS Healthcare Hotline for ACA questions (1-800-919-0452).”
- Updated Penalty Amounts. Both sets of 2017 draft instructions include updated penalty amounts for failures to file returns and furnish statements in 2017. The adjusted penalty amount is $260 per violation, with an annual maximum of $3,218,500 (up from a maximum of $3,193,000, for 2016).
- Code Series 2 (Section 4980H Safe Harbor Codes and Other Relief). The 2017 draft instructions for Forms 1094-C and 1095-C clarify that there is no specific code to enter on line 16 to indicate that a full-time employee who was offered coverage either did not enroll or waived the coverage.
- Corrected Forms 1095-C. The 2017 draft instructions for Forms 1094-C and 1095-C include additional information for employers that have errors on Forms 1095-C. Specifically, the draft instructions indicate that Forms 1095-C filed with incorrect dollar amounts on line 15, Employee Required Contribution, may fall under a safe harbor for certain de minimis errors. The safe harbor generally applies if no single amount in error differs from the correct amount by more than $100. If the safe harbor applies, employers will not have to correct Form 1095-C to avoid penalties. However, if the recipient elects for the safe harbor not to apply, the employer may have to issue a corrected Form 1095-C to avoid penalties. For more information, see Notice 2017-9.
- Reporting Catastrophic Coverage for 2017. The 2017 draft instructions for Forms 1094-B and 1095-B clarify that reporting for catastrophic coverage enrolled in through the Exchange remains optional for 2017. It was expected that health insurance issuers and carriers would be required to report this coverage beginning in 2017. However, the instructions clarify that reporting of catastrophic coverage enrolled in through the Exchange will remain optional for coverage in 2017 (filing in 2018).
- Formatting Returns Filed with the IRS. Both sets of 2017 draft instructions clarify that all returns filed with the IRS must be printed in landscape format.
In addition, a prior draft version of Form 1095-C for 2017 clarified that the “Plan Start Month” box in Part II of Form 1095-C will remain optional for 2017. The draft instructions for Forms 1094-C and 1095-C indicate that this box may be mandatory for the 2018 Form 1095-C.
Although the forms have been finalized for 2017 reporting, keep in mind that the IRS may include additional clarifications in the final instructions, once those are released.
Additional Resources
The 2016 versions of these forms are also available on the IRS website:
These forms must have been filed with the IRS no later than Feb. 28, 2017 (March 31, 2017, if filing electronically). However, the IRS extended the due date for furnishing individual statements for 2016 an extra 30 days, from Jan. 31, 2017, to March 2, 2017. The IRS does not anticipate extending the filing or furnishing deadlines for 2017 reporting.
According to the IRS, information returns under Sections 6055 and 6056 may continue to be filed after the filing deadline (both on paper and electronically). Employers that missed the filing deadline should continue to make efforts to file their returns as soon as possible.
The IRS also previously released:
More Information
Please contact Scurich Insurance for more information on reporting under Code Sections 6055 and 6056.
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The Internal Revenue Service (IRS) Office of Chief Counsel has recently issued several information letters regarding the Affordable Care Act’s (ACA) individual and employer mandate penalties. These letters clarify that:
- Employer shared responsibility penalties continue to apply for applicable large employers (ALEs) that fail to offer acceptable health coverage to their full-time employees (and dependents); and
- Individual mandate penalties continue to apply for individuals that do not obtain acceptable health coverage (if they do not qualify for an exemption).
These letters were issued in response to confusion over President Donald Trump’s executive order directing federal agencies to provide relief from the burdens of the ACA.
ACTION STEPS
These information letters clarify that the ACA’s individual and employer mandate penalties still apply. Individuals and ALEs must continue to comply with these ACA requirements, including paying any penalties that may be owed.
Background
The ACA’s employer shared responsibility rules require ALEs to offer affordable, minimum value health coverage to their full-time employees or pay a penalty. These rules, also known as the “employer mandate” or “pay or play” rules, only apply to ALEs, which are employers with, on average, at least 50 full-time employees, including full-time equivalent employees (FTEs), during the preceding calendar year. An ALE may be subject to a penalty only if one or more full-time employees obtain an Exchange subsidy (either because the ALE does not offer health coverage, or offers coverage that is unaffordable or does not provide minimum value).
The ACA’s individual mandate, which took effect in 2014, requires most individuals to obtain acceptable health insurance coverage for themselves and their family members or pay a penalty. The individual mandate is enforced each year on individual federal tax returns. Individuals filing a tax return for the previous tax year will indicate, by checking a box on their individual tax return, which members of their family (including themselves) had health insurance coverage for the year (or qualified for an exemption from the individual mandate). Based on this information, the IRS will then assess a penalty for each nonexempt family member who doesn’t have coverage.
On Jan. 20, 2017, President Trump signed an executive order intended to “to minimize the unwarranted economic and regulatory burdens” of the ACA until the law can be repealed and eventually replaced. The executive order broadly directs the Department of Health and Human Services and other federal agencies to waive, delay or grant exemptions from ACA requirements that may impose a financial burden. However, the executive order does not include specific guidance regarding any particular ACA requirement or provision, and does not change any existing regulations.
IRS Information Letters
Office of Chief Counsel issued a series of information letters clarifying that the ACA’s individual and employer mandate penalties continue to apply.
- Letter numbers 2017-0010 and 2017-0013 address the employer shared responsibility rules.
- Letter number 2017-0017 addresses the individual mandate.
According to these letters, the executive order does not change the law. The ACA’s provisions are still effective until changed by Congress, and taxpayers are still required to follow the law, including paying any applicable penalties.
More Information
For additional information on the ACA Executive Order and the current tax filing season, please visit www.irs.gov/tax-professionals/aca-information-center-for-tax-professionals.
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New Study Demonstrates the Dangers of Talking While Driving
It’s commonly known that smartphones, entertainment systems and other electronics can be a dangerous distraction to drivers. However, a new study from the University of Iowa found that simple conversations can also cause unsafe driving conditions.
The study used eye tracking equipment to analyze where subjects were looking and how long it took them to focus on a new object. Some subjects were also asked true or false questions at the same time in order to simulate a simple conversation. Data collected from the study found that subjects who answered questions took twice as long to focus on a new object than those who were asked no questions.
Although engaging in conversation seems simple, it involves a number of complex tasks that the brain must handle simultaneously. Even if the topic of conversation is straightforward, the brain has to absorb information, overlay what a person already knows and prepare to a construct a reply. And, although this process is done extremely quickly, it can also slow down reaction times and lead to a dangerous accident on the road.
The best way to keep your employees safe while driving is to encourage them to eliminate or turn off all potential distractions, including their cellphones and any hands-free accessories they may use to make a call. You can also consider including language about safe driving practices in your workplace safety policies.
Preventing Workplace Violence
As reports of shootings and other violent incidents become more common, workplace violence is a topic than no business can ignore. According to the U.S. Bureau of Labor Statistics, workplace homicides rose 2 percent in 2015, the latest year for which data is available. Additionally, the number of workplace shootings increased by 15 percent.
The best way to address potential acts of violence at your business is to be prepared to act before, during and after an act of violence occurs. Here are some programs you can use to ensure the safety of your employees and customers:
- Pre-employment screenings-Background checks can help identify candidates who have violent histories.
- Security-Security systems can ensure that only employees have access to certain areas.
- Alternative dispute resolutions-Techniques like facilitation and mediation can help solve a conflict before it escalates.
- Threat assessment teams-A designated team can work with management to assess the potential for violence and develop an action plan.
Congress Considers Flood Insurance Reforms
The National Flood Insurance Program (NFIP) is one of the few ways to get insurance coverage for flood risks, and the program is set to expire later this year. However, Congress is currently examining a number of possible changes to the NFIP before it’s reauthorized.
One of the most important topics regarding the NFIP is its financial stability. The program is currently $24 billion in debt as a result of rising claims costs and severe weather events, and some lawmakers believe that the program needs substantial reforms in order to remain viable.
The following are some of the changes that are being considered to the NFIP:
- Making private flood insurance more available to consumers
- Limiting payments to properties that flood repeatedly
- Reducing taxpayer subsidies for flood insurance
- Creating financial incentives for flood mitigation
DOL Withdraws Joint Employment and Worker Classification Guidance
The U.S. Department of Labor (DOL) recently withdrew administrative interpretations regarding joint employment and the classification of workers as employees or independent contractors. These withdrawals can have significant consequences on legal protections for employees and eligibility for benefits.
- Worker classification-Employers will need to satisfy tests established by the courts-such as the economic realities test-when classifying workers.
- Joint employment-Joint employment can only be established when an employer has direct control over another employer’s workplace.
To learn more about what these withdrawals could mean for you, contact Scurich Insurance and ask to see our comprehensive compliance bulletins, “DOL Withdraws Joint Employer Guidance” and “DOL Withdraws Worker Classification Guidance.”
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Another global cyber attack was activated on Tuesday, leaving companies across Europe, Australia and even the United States struggling to respond.
This outbreak may be the most sophisticated of a series of attacks initiated after hacking tools were stolen from the National Security Agency and leaked online in April. Similar to the WannaCry attacks in May, the most recent hack involves taking control of computer systems and asking users for digital ransom in order to regain access.
According to a spokesperson from Microsoft, the latest software update used to patch EternalBlue—the Windows software vulnerability that caused previous attacks—should protect against this attack. However, the companies affected may have failed to properly install it. As of Wednesday morning, the following companies had been affected:
- Ukrainian institutions that include the Infrastructure Ministry, postal service, central bank and the country’s largest telephone company
- Russian oil company Rosneft
- The world’s largest container-shipping company A.P. Moller-Maersk
- U.S. pharmaceutical giant Merck
- U.S. food company Mondelez International
- French bank BNP Paribas
- French construction materials company Saint-Gobain
- British marketing company WPP
- German railway company Deutsche Bahn
Although the perpetrators of this outbreak are still unknown, computer specialists have noticed similarities between the ransomware used in this attack and last year’s Petya attack. Like WannaCry, Petya is a quickly spreading worm that affects vulnerable systems. Unlike WannaCry, Petya has multiple ways to spread. This could explain why even victims who applied the EternalBlue patch were affected.
If the most recent attack is related to Petya, it could be far more damaging than WannaCry. Unlike WannaCry, Petya lacks a kill switch to prevent it from spreading. Also, Petya locks and encrypts entire hard drives, while WannaCry only locked individual files.
At the time of this news brief, 30 victims had paid the bitcoin ransom of $300, according to online records, but it isn’t yet clear whether they’ve regained access to their systems. Complicating matters, German email provider Poseo shut down the email account of the hackers in a move that could make it impossible for hackers to restore their victims’ computer access once ransom is paid.
Scurich Insurance will continue to monitor the situation. Contact us if you have any further questions regarding how you can avoid disruptive business interruptions from cyber attacks.
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Executive Order on Apprenticeships Expected to Help Manufacturers
President Donald Trump recently signed an executive order that will expand apprenticeship programs across the country. As a result of the order, the number of available apprenticeships is expected to increase and the federal government will increase spending for apprenticeship programs to $200 million per year.
Many manufacturers use apprenticeships to meet employment requirements and help students get hands-on experience that can’t be achieved in a classroom. A larger emphasis on apprenticeships may also help fill an anticipated employee shortage in the manufacturing industry. According to the Manufacturing Institute, there will be 3.4 million manufacturing jobs to fill over the next 10 years.
Although the executive order didn’t set specific goals for the number of apprenticeships to be added, experts believe that up to 5 million apprenticeships could exist in the next 10 years. A clause included in the executive order may also allow existing internships to be categorized as apprenticeships.
Machining Safety Tips
Using machines is common for every manufacturer, but ignoring machining safety can expose you to incredibly high costs. OSHA issued $6.8 million in penalties for machining safety violations in 2015, and the associated costs of medical bills, damaged equipment and replacement personnel is much higher.
Before your employees use any machine, you should conduct a review to ensure that they’re properly trained and that all equipment is in working condition. Also, make sure that machine guards are in place to prevent injuries and that employees wear any required personal protective equipment. For more resources on machining safety, contact us at 831-661-5697 today.
Air Bag Manufacturer Files for Bankruptcy
Japanese auto part supplier Takata recently filed for bankruptcy after many years of managing the largest product recall in U.S. history. At least 16 deaths have been attributed to the company’s faulty air bag inflators, and over 69 million vehicles have been recalled as a result.
Although Takata recently pleaded guilty to a felony charge as part of an agreement with the Justice Department, mounting costs from the recall and associated lawsuits overwhelmed the manufacturer. However, Takata executives stated that filing for bankruptcy will allow them to reorganize their finances and continue shipping replacement parts for affected vehicles.
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