Department of Labor Issues Final Rule to Allow Associations and PEOs to Sponsor Retirement Plans

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Final rule defines a PEO as an employer under ERISA and clarifies rules for PEOs to offer retirement benefits

On July 29, 2019, the Department of Labor (the “Department”) issued a final rule to facilitate and expand the availability of multiple employer defined contribution plans (“MEPs”). The final rule provides clarity regarding the types of “bona fide” groups or associations of employers as well as professional employer organizations (“PEOs”) that are permitted to sponsor retirement plans.

NAPEO supports the rule, as it is another step in in formalizing the legal framework for PEOs to provide benefits for their client’s shared employees. This action, along with the passage of the Small Business Efficiency Act contained in the Tax Increase Prevention Act (H.R. 5771, Public Law 113‐295) which created the voluntary IRS PEO Certification Program, demonstrates the federal government’s recognition of the PEO industry and the important role it plays in supporting our nation’s small businesses.

With respect to PEOs, the final rule does two things. First, it states that a “bona fide” PEO is capable of establishing a MEP. The rule then creates a safe harbor criteria for determining whether a PEO that sponsors a MEP is performing essential employment functions.

A copy of the final rule can be found here.

A summary of the final rule can be found here.

A detailed analysis on this issue from the Groom Law Group can be found here.

A recording of a NAPEO-sponsored webinar on this issue can be found here.

A copy of NAPEO’s comments on the proposed rule can be found here.
NAPEO Article can be found:

https://www.napeo.org/advocacy/what-we-advocate/federal-government-affairs/peos-retirement-regulation/dol-meps-finalrule

 

 

Workers’ Compensation Claims for Leased or Temporary Workers

Many companies are increasingly turning to staffing agencies to meet their personnel needs for a variety of reasons, including increased workloads and high employee turnover rates. Companies that use staffing agencies can save money because they avoid selecting, hiring and training new full-time employees. In addition, using staffing agencies frequently offers companies peace of mind because they know that workers will show up and perform their duties consistently.

But what happens if one of the staffing agency workers is hurt on the job? Who is responsible for covering the injury? What if the injured worker wants to sue the staffing agency’s client company for negligence? Answering these questions requires a thorough understanding of the employment relationships between the staffing agency worker and the client company. And the way employees are classified affects how the staffing agency and the client company’s workers’ compensation and commercial general liability (CGL) policies apply to work-related injuries.

Workers’ Compensation Versus CGL

Generally, companies are required to cover an injured employee’s medical treatment and lost wages through a workers’ compensation policy. This is a system of no-fault insurance that affords employees some security while recovering from work-related injuries. In exchange for these benefits, employees waive their right to sue their employers for negligence and related damages. Workers’ compensation provisions apply only where an employer-employee relationship exists between a company and its workers.

CGL policies protect companies when third parties (non-employees) are hurt because of the company’s negligence or misconduct. The issue of CGLs is particularly important for companies with staffing agency workers because it is not always clear whether an employment relationship exists between the company and the staffing agency workers. To fully appreciate the complexity of the issue, companies must be able to properly

Leased Versus Temporary Workers

The definitions for leased and temporary workers vary from state to state, so an adequate classification of staffing agency workers requires a solid understanding of state and local requirements.

For CGL purposes, a leased worker is an individual leased to a client company by a labor leasing firm under an agreement between the company and the labor leasing firm to perform duties related to the conduct of the company’s business. The leased worker category does not classify staffing agency workers as either leased workers or temporary workers.

Leased Versus Temporary Workers

The definitions for leased and temporary workers vary from state to state, so an adequate classification of staffing agency workers requires a solid understanding of state and local requirements.

For CGL purposes, a leased worker is an individual leased to a client company by a labor leasing firm under an agreement between the company and the labor leasing firm to perform duties related to the conduct of the company’s business. The leased worker category does not include temporary workers. Under this definition, leased workers are considered employees of the client company and are, therefore, excluded from the client company’s CGL.

CGL policies define a temporary worker as an individual furnished to a client company to substitute for a permanent employee who is on leave or to meet the company’s seasonal or short-term workload conditions. Temporary workers are considered employees of the staffing agency and are covered by the staffing agency’s workers’ compensation policy and could be covered by the client company’s CGL.

The Coverage Gap

An insurance coverage gap exists when a leased employee is injured while in the client company’s employ. Leased employees are considered to be employees of the client company for CGL purposes, but they may not necessarily qualify as employees under applicable workers’ compensation regulations.

This results in employing individuals who could sue the client company for negligence (because they are not limited by applicable workers’ compensation provisions). A company with no CGL coverage must pay any court-ordered damages (because CGL coverage does not apply to the company’s employees).

Solutions to the Coverage Gap

To bridge the gap created by leased workers, companies can look at shifting work-related injury liability to the staffing agency through an alternate employer endorsement or an extension of their CGL coverage to injury to leased workers.

  1. Alternate Employer Endorsement

Client companies can negotiate with staffing agencies to include an alternate employer endorsement on the staffing agency’s workers’ compensation and employer liability policies. This endorsement protects the client company, providing coverage to the client company in the case of a tort action and by giving the client company all the workers’ compensation coverage the staffing agency enjoys.

  1. Coverage for Injury to Leased Workers

This endorsement can be added to the client company’s CGL policy by changing the language that excludes leased workers and temporary coverage from CGL coverage. However, companies should recognize that insurance carriers will disfavor this solution as it effectively removes an exception they intentionally built into the CGL policy.

Trump Administration Issues New Rule on Joint Employer Liability

The joint employer saga continues…see below from Insurance Journal regarding the Trump Administration’s announcement yesterday.

The Trump Administration announced a final rule setting forth standards for determining joint employer status under the Fair Labor Standards Act (FLSA), a rule that has been sought by franchisers and companies that employ contract workers.

The new rule from the Department of Labor, which will become effective in 60 days, is a departure from a legal interpretation adopted by the Obama Administration in 2016 and a 2015 ruling by the National Labor Relations Board (NLRB) that expanded joint employment situations and made it easier for workers to sue their employers.

The new DOL rule, while not legally binding, does guide consideration of whether companies are classified as joint employers of workers and thereby can be held responsible for labor violations including requirements on minimum wage and overtime pay. The rule can affect franchising companies, contractors, temporary staffing, cleaning agencies and similar firms.

The issue has been central to several cases involving the chain McDonald’s and whether it can be held liable for alleged labor violations in its franchisees’ restaurants. Last month McDonald’s won a 2-1 victory before the current NLRB with Trump appointees—agreeing to pay $170,000 to settle workers’ claims against its franchisees but also winning a ruling that frees it from direct responsibility as a joint employer.

The Obama administration had backed worker advocacy groups in the litigation against McDonald’s.

The Obama standards for determining whether there is joint employer status themselves departed from long-standing precedent and made it easier for workers to sue their employer.

In its final rule, the Trump DOL provides a four-factor balancing test for determining FLSA joint employer status in situations where an employee performs work for one employer that simultaneously benefits another entity or individual. The balancing test examines whether the potential joint employer:

  • Hires or fires the employee;
  • Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;
  • Determines the employee’s rate and method of payment; and
  • Maintains the employee’s employment records.

A business would not have to meet all of these criteria to be considered a joint employer.

The rule also sets forth when additional factors may be relevant to a determination of FLSA joint employer status and identifies certain business models, contractual agreements with the employer, and business practices that do not make joint employer status more or less likely.

Recent History

In a decision known as Browning-Ferris Industries, the NLRB in August 2015 overturned established precedent for determining whether a joint employer relationship exists under the National Labor Relations Act. Legal guidance adopted by the Obama DOL in 2016 reflected the expansion of joint employer liability cited in the Browning-Ferris ruling. For example, it considered a franchiser a joint employer not only if it exercised direct control of employees’ activities, but also if it had “indirect” or even “potential” control.

The Trump DOL withdrew the Obama guidance in 2017.

Writing in the Wall Street Journal, DOL Secretary Eugene Scalia and White House Chief of Staff Mick Mulvaney said the new rule should clarify the situation affecting these relationships and relieve companies of a potential liability.

“The new rule also gives companies in traditional contracting and franchising relationships confidence that they can demand certain basic standards from suppliers or franchisees—like effective antiharassment policies and compliance with employment laws—without themselves being deemed the employer of the other company’s workers. That will help companies promote fair working conditions without facing unwarranted regulatory costs,” the Trump officials wrote in the Wall Street Journal.

The International Franchise Association (IFA) praised the new rule as a “return to a simple, clear, and thoughtful joint employer standard.” IFA has argued that the Obama standard increased lawsuits against employers, cost jobs and sapped the American economy of $33.3 billion per year.

Robert Cresanti, IFA president and CEO, said the four-part test to determine employer status can clarify joint employer status, employer liability, and the roles and responsibilities of each party in a business relationship.

Worker groups have argued that a narrowing of the rule will create an incentive for large employers to outsource more jobs.

Rebecca Dixon, executive director of the National Employment Law Project, said the new rule “makes it easier for corporations to cheat their workers and look the other way when workplace violations occur.”

The liberal Economic Policy Institute has said workers could lose $1.3 billion in wages annually under the new rule.

There is more to come on the issue from the Trump Administration. While the DOL standards are not legally binding, the NLRB joint employer rule is. The NLRB is close to finalizing its own rule.

https://www.insurancejournal.com/news/national/2020/01/13/554657.htm

California’s gig worker law is forcing small businesses to rethink staffing

Source: CBSNews.com

A California law that makes it harder for companies to treat workers as independent contractors takes effect on January 1. Ahead of that date, small businesses in and outside the state are rethinking their staffing.

The law puts tough restrictions on who can be independent contractors or freelancers rather than employees. Supporters say it addresses inequities created by the growth of the gig economy, including the employment practices of ride-sharing companies like Uber and Lyft that use contractors. Company owners with independent contractors must now decide whether to hire them as employees or look for help in other states. Another alternative: Asking these workers to start their own businesses, a setup the law allows.

Although the law affects companies of all sizes and out-of-state businesses that use California contractors, it likely will have a greater impact on the many small businesses that have hired independent contractors because of limited staffing budgets.

Tamara Ellison has used independent contractors in both her consulting and construction businesses. She’s expecting to hire five of her consulting contractors as employees to bring her company into compliance with the law. But she’s also thinking she may have to limit the services she offers because not all her hires will have all the skills she needs for all her clients. She may also have to raise her prices, a worrisome proposition.

“Little companies just trying to start out won’t be able to afford our services,” said Ellison, whose Ontario, California-based company bears her name.

Ellison won’t need to hire her construction contractors; they’re subcontractors, a classification that complies with the new law.

The law approved by the California legislature in September codifies a 2018 ruling by the state’s Supreme Court that said workers misclassified as independent contractors lose rights and protections including a minimum wage, workers’ compensation, and unemployment compensation. The ruling came in a lawsuit brought against the delivery company Dynamex; workers around the country have complained that services like Uber and Lyft have misclassified them as well.

The law is being challenged in state courts, and companies including Uber and Lyft are campaigning for a referendum on the 2020 election ballot on whether they should be exempt from the law. And employment law attorneys expect the state legislature to add to the list of professions the law already excludes.

Independent contractors and freelancers have long been a sore point for federal and state officials who contend that many of these workers are doing work that employees do. When employers classify workers as independent contractors, they avoid taxes including the 6.2% of salary and wages companies must pay for Social Security and the 1.45% they must pay for Medicare. Employers must also pay for workers’ compensation and unemployment and disability insurance and often their health insurance and retirement benefits.

For many small business owners, especially those who do a variety of projects requiring different types of expertise, contractors provide more flexibility. WebConsults, a digital marketing agency with offices in California and Tennessee, bases its hiring decision on the work it has and whether projects are long term or short term.

“We may need a developer who specializes in a specific language to help us build one website,” managing partner John McGhee said. “If we don’t anticipate having to use that language again in the near future, we’ll hire a contractor to build the website.”

The layoffs companies were forced to make during and after the Great Recession encouraged many small business owners to choose independent contractors over employees. Contractors often cost less — they don’t get health insurance, 401(k) contributions and other benefits — and owners don’t have to let people go and pay severance when business slows.

The new law allows workers to be classified as independent contractors only if companies don’t have the right to control their work and how it is done. A number of factors go into making that determination, including how closely the worker is supervised — for example, who sets their hours. The work being done must not be part of the company’s regular business, and the worker’s occupation must be distinct from the company’s; in other words, a graphic designer cannot be an independent contractor for a graphic design firm.

There are exemptions for professionals like doctors, lawyers, architects, and insurance brokers, but they must have the freedom to set their own hours, negotiate their own fees and exercise their own judgment as they do their jobs. Workers like graphic artists, freelance writers, and travel agents can also be exempt if they have similar autonomy. And people who work in barbershops, hair and nail salons and spas can have exemptions, but they have to set their own rates and hours, choose their own clients and be paid directly by the clients.

man standing beside man sitting on barber chair

Marisa Vallbona has transitioned a contractor who has worked for her in California into an employee and is being more selective about the work she takes on in the state. Vallbona, who recently moved the headquarters of her public relations firm, CIM, to Houston from California, is now using only Texas-based contractors.

“I don’t work with freelancers in California anymore because of the gig economy problems,” she said.

Other companies inside and out of California may follow suit. The increase in remote working over the past two decades has made it easier for companies to find workers anywhere.

Companies that don’t comply with the law face the possibility of penalties running into the tens or hundreds of thousands of dollars, said Nannina Angioni, an employment law attorney with Kaedian LLP in Los Angeles. She’s warning clients that the law expands the ability of local officials, and not just state tax officials, to enforce the law starting July 1. Moreover, she says the law can lead to lawsuits brought by workers.

Some owners may believe it’s OK to use independent contractors or freelancers because some workers like being part of the gig economy, said Michael Boro, a consultant with PwC whose expertise is in workplace issues.

“These people don’t want to be employees” is the position owners may take, Boro said. But, he warned, they need to follow the law, not workers’ wishes.

 https://www.cbsnews.com/news/californias-gig-economy-law-is-forcing-small-businesses-to-rethink-staffing/

 

What is California’s Assembly Bill 5?

On January 1, 2020, Assembly Bill (AB) 5 will go into effect and may impact whether your workers are treated as employees or as independent contractors under California law.

The state has launched a new website with information, including Frequently Asked Questions, to help you understand the ABC test (a 3-part test to determine whether an employee could be classified as a contractor rather than an employee), AB5, and your obligations as an employer.

Please visit Labor.ca.gov/employmentstatus, which contains information from various state entities.

California Workers’ Compensation Written Premium Continues to Decrease in 2019

Source: Insurance Journal

Premium decreases in California workers’ compensation may have escalated in 2019, a new report shows.

The Workers’ Compensation Insurance Rating Bureau of California on Wednesday released its quarterly experience report, an update on California statewide insurer experience valued as of Sept. 30.

The report shows decreases in written premium since 2016 are primarily driven by decreases in insurer charged rates more than offsetting increases in employer payroll.

Written premium for 2018 was 4% below that for 2017 and 6% below that for 2016, according to the WCIRB report.

Highlights of the WCIRB report include:

  • California written premium through the third calendar quarter of 2019 is 7 percent below the same period for 2018, suggesting that premium decreases are escalating in 2019.
  • The average charged rate for the first nine months of 2019 is 11 percent below that for 2018 and 32 percent below the peak in 2014.
  • The WCIRB projects the ultimate accident year loss ratio for 2018 to be three points above that for accident year 2017, driven by higher claim severities for 2018 and lower premium rates.

The full report is available in the research section of the WCIRB website.

DOL Issues New Salary Limits for Overtime Exemptions

OVERVIEW

On Sept. 24, 2019, the U.S. Department of Labor (DOL) announced a new final rule that updates the salary thresholds that some individuals must meet in order to qualify for a
minimum wage and overtime exemption under the federal Fair Labor Standards Act (FLSA). The final rule becomes effective on Jan. 1, 2020. The final rule affects the exemptions for executive, administrative and professional (EAP) employees, highly
compensated employees (HCEs), employees in the motion picture industry and individuals who work in various U.S. territories.

ACTION STEPS

The final rule’s Jan. 1, 2020 effective date leaves little time for employers to prepare for the changes. Employers should:

  • Determine which currently exempt employees have
    salaries below the new threshold; and
  • Decide whether to increase salaries for these
    individuals or reclassify them as non-exempt
    employees.

The 2019 Overtime Final Rule

As expected, this final rule includes updates to the standard salary level for the EAP and HCE exemptions and allows employers to count up to 10 percent of an employee’s nondiscretionary bonuses and incentive payments (including commissions) as part of the employee’s standard salary level. The rule also creates special standard salary levels for the exemption that applies to employees in the motion picture production industry and some U.S. territories. The table below shows the salary levels for the EAP and HCE exemptions that will apply on Jan. 1, 2020. The final rule’s salary levels are different from the 2016 rule and the 2019 proposed rule.

Nondiscretionary Bonuses

The final overtime rule will allow employers to use up to 10 percent of an employee’s bonuses to satisfy salary level requirements if:

  • The bonus, commission or other incentive pay is nondiscretionary; and
  • The employee receives this incentive pay at least annually (during any given year or 52-week period).

The final rule also contains a “catch-up” provision that enables employees to remain exempt when their nondiscretionary bonuses aren’t enough to meet the salary level required by an FLSA exemption. Under this new rule, employers must make a “catch-up payment” within one pay period at the end of the 52-week period before losing that employee’s exempt status. The DOL has warned that any catch-up payment “will
count only toward the prior year’s salary amount and not toward the salary amount in the year in which it is paid.”

Additional Updates

The final rule sets a special salary level of $380 per week for American Samoa, and sets a special salary level of $455 per week for employees in Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands. The rule also establishes a base rate threshold for employees in the motion picture producing industry of $1,043 per week. This new threshold can be prorated based on the number of days the employee has worked. The DOL intends to update the standard salary and HCEs total annual compensation levels more regularly in the future through notice-and-comment rulemaking.

DOL Issues New Salary Limits for Overtime Exemptions

Latest NAPEO White Paper Shows ROI Of Using a PEO is 27 Percent

See below from our friends at NAPEO.  Solid results!!

AUSTIN, TexasSept. 17, 2019 /PRNewswire/ — The average client of a professional employer organization (PEO) can expect a return on investment – based on cost savings alone – of 27.2 percent, according to a new study released today by the National Association of Professional Employer Organizations (NAPEO) at its annual conference in Austin.

Conducted by noted economists Laurie Bassi and Dan McMurrer of McBassi and Associates, the study is the seventh in a series. Previous research by Bassi and McMurrer examined the benefits of using a PEO, finding increased profitability and growth, higher employee satisfaction, and lower employee turnover for companies that use a PEO.

The new report focused solely on costs and calculated savings for PEO clients in five HR-related areas:

  • HR personnel costs
  • Health benefits
  • Workers’ compensation
  • Unemployment insurance (UI)
  • Other external expenditures in areas related directly to HR services (payroll, benefits, etc.)

The average cost savings from using a PEO is $1,775 per year per employee, according to the study, which also reinforced the findings of earlier research, again showing notably lower employee turnover, higher rates of both employee and revenue growth, and enhanced employee benefit offerings.

“We have known for some time now that using a PEO is good for a company in a variety of ways, and we now have a compelling and impressive number on the actual ROI of using a PEO,” said NAPEO President & CEO Pat Cleary. “When you put this new data on costs savings and ROI together with the data we already had on business growth, turnover, survival and employee satisfaction, it’s clear that there really is no better value proposition than PEOs in the HR space.”

PEOs provide HR, payroll, benefits, workers’ comp, and regulatory compliance assistance to small and mid-sized companies. By providing these services, PEOs help businesses improve productivity, increase profitability, and focus on their core mission. Through PEOs, the employees of small businesses gain access to employee benefits such as 401(k) plans; health, dental, life, and other insurance; dependent care; and other benefits typically provided by large companies. A copy of the full study is available here.

About NAPEO
The National Association of Professional Employer Organizations (NAPEO) is The Voice of the PEO IndustryTM. NAPEO has some 250 PEO members that provide payroll, benefits, and other HR services to between 175,000 businesses employing 3.7 million people. An additional 200 companies that provide services to PEOs are associate members of NAPEO. For more information, please visit www.napeo.org 

SOURCE National Association of Professional Employer Organizations (NAPEO)