Massachusetts Attorney General (1.) Releases Paid Sick Leave Employee Verification Form, Sample Policy and Poster/Employee Notice and (2.) Announces Sick Leave Law Webinars and “In Person” Information Sessions

July 10, 2015 at 12:20 pm | Posted in Employment Law, Massachusetts Sick Leave Law | Leave a comment
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1. Documents

The Massachusetts Attorney General has posted the following items on her website which will be of interest to employers across the country that have employees who work primarily in Massachusetts that are now subject to the Massachusetts Sick Leave Act (MSLA):

  1. A model employee verification form designed to allow the employee to satisfy their reporting obligations to the employer if the employee uses paid (or unpaid ) sick leave;
  2. A sample sick leave policy that an employer can customize as they see fit; and
  3. An employee notice and poster. There is a poster requirement comparable to the FMLA poster requirement and the employee notice requirement can be complied with by either providing the modal notice or putting similar content in an employee handbook.

The sample policy and verification forms will be found under the “Sample Documents” tab and the sample Poster/Notice can be found under the “Notice for Posting” tab.

A link to the webpage with the referenced forms is here: Earned Sick Time Law – Mass.Gov

2.  Webinars and In-Person Information Opportunities

Web Based Information Sessions In-Person Information Sessions
Tuesday July 14, 2015: 2pm-4pm
Wednesday, July 22, 2015: 12pm – 2pm
3 Salem Square, Worcester, MA


Tuesday July 21, 2015: 2pm-4pm
Tuesday, August 4, 2015: 2pm – 4pm
Boston Public Library, Main Library, Salon Room


Tuesday July 28, 2015: 10am-12pm
Friday, September 11, 2015: 8am – 10am
Danvers, Location:TBD


Thursday July 23, 2015: 10am-12pm

Two Individual Fiduciaries Liable for Payment of $4.7 Million for Bilking Welfare Benefit Plan

December 12, 2014 at 10:59 am | Posted in Employment Law, ERISA, Essential Health Benefits | Leave a comment
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 Two Individual Fiduciaries Liable for Payment of $4.7 Million for Bilking Welfare Benefit Plan;

 Lawsuit was filed 9 years ago.


The DOL issued the following announcement yesterday:

CHERRY HILL, N.J. – A federal judge has found the fiduciaries of a defunct national multi-employer benefit plan based in Cherry Hill, are liable for approximately $4.7 million in assets that were improperly diverted. James Doyle and Cynthia Holloway, fiduciaries to the Professional Industrial Trade Workers Union Health and Welfare Fund, must make restitution to the plan, with interest, for violating the Employee Retirement Income Security Act.

The decision resolves a lawsuit filed by the U.S. Department of Labor in 2005 and subsequent legal proceedings stemming from an investigation conducted by the department’s Employee Benefits Security Administration.

“Doyle used this benefit plan as the guise for an illegal moneymaking scheme that jeopardized the well-being of countless workers and their families.  Holloway was in a position to put an end to the fraud, but failed to act,” said Assistant Secretary of Labor for Employee Benefits Security Phyllis C. Borzi. “The department’s persistence in pursuing this case through an appeal should send a message to those who think they can get away with conducting such an outlandish scheme.”

The court determined that Doyle and others used the fake Professional Industrial Trade Workers Union as a front for a scheme to operate a purported, union-sponsored employee benefit plan.  To obtain medical benefits from the plan, employers and workers across the United States were required to join the phony union and make payments.  Rather than use the funds to pay out health care benefits and pay reasonable costs of administration, most of the payments were used to cover bogus expenses including “union dues.” While Doyle diverted money that should have been used to pay benefits, Holloway failed to act as a prudent and loyal fiduciary by failing to put a stop to the scheme.

The court also found that the defendants marketed and ran the health plan in violation of federal law when they failed to administer the fund’s assets for the exclusive purpose of providing benefits to the fund’s participants and beneficiaries.

Filed in the U.S. District Court for the District of New Jersey, the decision permanently bars Doyle and Holloway from serving as a fiduciary or service provider to any ERISA-covered employee benefit plan, and appoints an independent fiduciary to administer and ultimately terminate the plan.  At its height, the plan had approximately 2,500 participants.

The investigation was conducted by the EBSA Philadelphia Regional Office. The case was litigated by the New York Regional Office of the Solicitor and the department’s Division of Plan Benefits Security.

Workers participating in employer-sponsored health and retirement benefit plans, who feel that they have been denied a benefit appropriately or have questions about benefits laws, can contact an EBSA benefits advisor by or calling 866-444-EBSA (3272).

EEOC Issues Employee Pregnancy Discrimination Guidance

July 15, 2014 at 2:28 pm | Posted in Affordable Care Act, Americans with Disabilities Act, Compliance, Employment Law | Leave a comment
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Yesterday the EEOC released comprehensive enforcement guidance on the issue of an employer’s obligations regarding employee pregnancy and discrimination that arises from a past, current or expected future pregnancy. The guidance updates prior EEOC guidance on this subject in light of legal developments over the past thirty years and includes a discussion of:

  • when employer actions may constitute unlawful discrimination on the basis of pregnancy, childbirth, or related medical conditions in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA);
  • the obligation of employers under the PDA to provide pregnant workers equal access to benefits of employment such as leave, light duty, and health benefits; and
  • how Title I of the Americans with Disabilities Act (ADA), which went into effect over a decade after the PDA and was amended in 2008 to broaden the definition of disability, applies to individuals with pregnancy-related impairments

In regards to the issue of health insurance, the EEOC addressed the issue in the following FAQS:

Are employers who provide health insurance benefits required to provide insurance that includes coverage of pregnancy, childbirth, or related medical conditions?

Yes. Employers who have health insurance benefit plans must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy. If the plan covers pre-existing conditions — as all health plans are required to do as of January 1, 2014, under the Patient Protection and Affordable Care Act — then it must cover the costs of an insured employee’s pre-existing pregnancy. If the plan covers a particular percentage of the medical costs incurred for non-pregnancy-related conditions, it must cover the same percentage of recoverable costs for pregnancy-related expenses.

Employers can violate the PDA by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes. To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer’s health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, or prescription drugs to prevent high blood pressure or to lower cholesterol levels, then prescription contraceptives also must be covered.

May employers covered by the PDA refuse to provide coverage of prescription contraceptives if they have religious objections to doing so?

In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court recently ruled that the Patient Protection and Affordable Care Act’s contraceptive mandate violated the Religious Freedom Restoration Act (RFRA) as applied to closely held for-profit corporations whose owners had religious objections to providing certain types of contraceptives. EEOC’s Enforcement Guidance explains Title VII’s prohibition of pregnancy discrimination; it does not address whether certain employers might be exempt from Title VII’s requirements under the RFRA or under the Constitution’s First Amendment.

A link to the guidance and EEOC FAQS regarding pregnancy discrimination can be found here:

Enforcement Guidance: Pregnancy Discrimination And Related Issues
Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues

Affordable Care Act Update: Final Regulations for 90-Day Waiting Period Released

February 21, 2014 at 11:19 am | Posted in Affordable Care Act, Compliance, Creditable Coverage, Department of Labor, Employment Law, Federal Taxes, Health and Human Services, Health Care, PPACA, Regulations | Leave a comment
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On February 20th, The U.S. Departments of Labor, Treasury, and Health and Human Services published final regulations (85 pages) implementing a 90-day limit on waiting periods for health coverage. The final regulations require that no group health plan or group health insurance issuer impose a waiting period that exceeds 90 days after an employee is otherwise eligible for coverage. The rules do not require coverage be offered to any particular individual or class of individuals.

To ensure that eligibility conditions based solely on the passage of time are not used to evade the waiting period limit, the rules state that such conditions cannot exceed 90 days. Other conditions for eligibility are generally permissible, such as meeting certain sales goals, earning a certain level of commission, or successfully completing an orientation period.

Additionally, requiring employees to complete a certain number of hours before becoming eligible for coverage is generally allowed as long as the requirement is capped at 1,200 hours. The rules also address situations in which it cannot be determined that a new employee will be working full-time.

The departments are issuing a companion proposed rule that would limit the maximum duration of an otherwise permissible orientation period to one month. This proposal will be open for public comment.

A link to the final rule is here:

Employer Pays $25,000 to Settle Employee FMLA Claims Arising Out of Care for the Employee’s Niece

February 7, 2014 at 1:54 pm | Posted in Compliance, Department of Labor, Employment Law, FMLA, Human Resources, Regulations | Leave a comment
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Ohio based DNA Diagnostics Center Inc. has agreed to pay $25,000 in lost wages and liquidated damages to an employee  for unlawfully denying her FMLA leave. The company  fired the employee for exercising her rights under the FMLA to care for her seriously ill 12-year-old niece, for whom the employee was standing “in loco parentis,” or in the place of a parent. Under terms of the settlement agreement, the company must expunge the employee’s record of any disciplinary references. In June 2010, the DOL issued an Administrator Interpretation clarifying the definition of son and daughter under the FMLA includes not only a biological or adopted child, but also a foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. This definition ensures that an employee who assumes the role of caring for a child receives parental rights to family leave, regardless of the legal or biological relationship.

A copy of the DOL press release is here:

2014 Federal Poverty Guidelines Released… Will be Used to Determine Health Insurance Subsidy Eligibility at State and Federal Exchanges

January 24, 2014 at 9:44 am | Posted in Compliance, Employment Law, Health and Human Services, Health Care, Health Insurance Exchanges, Health Insurance Marketplace, Regulations | Leave a comment
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HHS has released 2014 federal poverty guidelines which, among other things, will establish income thresholds for health insurance subsidy eligibility on state and federal exchanges. The threshold (in the 48 contiguous states and DC) for one person will be $11,670, a $180 increase over the 2013 level. The 2014 guidelines reflect a 1.5 percent price increase between calendar years 2012 and 2013. If an employee qualifies for an exchange subsidy in 2015, the receipt of that subsidy might trigger a “large” employer (50 FTEs) shared responsibility penalty under internal revenue code section 4980H.

2014 Poverty Guidelines for the 48 Contiguous States and the District of Columbia

Persons in Family/Household

Poverty Guideline

















For families/households with more than 8 persons, add $4,060 for each additional person.

A copy of the release as it appears in the Federal register is here:

Employer Pays $370,000 for GINA Violations Relating to Family Medical History Questions and ADA Infractions

January 23, 2014 at 10:06 am | Posted in Americans with Disabilities Act, Compliance, Employment Law, Federal Laws, Genetic Information Nondiscrimination Act (GINA), Regulations, Wrongful Termination | Leave a comment
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Founders Pavilion, a nursing rehabilitation center in Corning, New York, was sued for violations of the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) by the EEOC last May. Founders had a practice of requesting family medical history as part of its post-offer, pre-employment medical exams of applicants. GINA, passed by Congress in 2008 and enforced by the EEOC, prevents employers from requesting genetic information or making employment decisions based on genetic information.

The parties settled earlier this month, with Founders paying $370,000. This included a $110,400 payment to a fund for distribution to 138 individuals who were asked for their genetic information, and a payment of $259,600 to 5 individuals who the EEOC alleged were fired or denied hire in violation of the ADA.

A copy of the EEOC press release concerning the matter is here:

Additional Delay in Discrimination Testing for Fully Insured Plans Reported

January 20, 2014 at 10:17 am | Posted in Compliance, Employment Law, Federal Laws, IRS, Regulations | Leave a comment
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According to the New York Times, the IRS will further delay the issuance of regulations that prohibit discrimination of eligibility or benefits “in favor of highly compensated individuals” in fully insured health plans.

Since the IRS has not yet determined how to measure health benefits — or which well-paid employees would be considered “highly compensated” — they plan to hold off on penalties, which are set at $100 per day for each employee negatively impacted. Similar discrimination regulations have been in place for self insured employers for more than 30 years.

“The IRS has not announced any new or additional information on this issue,” IRS spokesperson Michelle Eldridge said in a statement. “The New York Times story refers to IRS Notice 2011-1, which was released to the press on December 22, 2010. That Notice stated that the sanctions under Public Health Service Act Section 2716 will not apply until after generally applicable guidance is issued, because the statute requires regulatory detail in order to operate properly.”

“Work on that guidance continues, taking into consideration comments received from the public. Any suggestion that there is a new delay is misleading,” Eldridge said.

DOL Sues Employer/Plan Sponsor for Approximately $500,000 and Removal of Health Plan Fiduciaries for Failure to Fund Health and COBRA Coverage and Pay Incurred Claims

December 26, 2013 at 11:51 am | Posted in COBRA, Compliance, Department of Labor, Employment Law, Flexible Spending Accounts, Health Care, Medical | Leave a comment
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On December 18th, in Perez v. Home Valu, et al., the DOL sued a self insured health benefit plan, self insured dental plan, flexible benefit plan, COBRA plan, and the individuals responsible for its administration seeking recoupment of approximately $500,000.

On December 24, 2009 the self insured plans stopped paying benefit claims. On January 10, 2010 Home Valu stopped doing business because of financial pressures. All Home Valu benefit plans were formally terminated on January 22, 2010 although they were practically terminated on December 24 when the self insured plans stopped paying claims. Nevertheless, HomeValu continued to deduct approximately $12,000 in insurance premiums from employee paychecks in January 2010 and failed to apply those premiums towards health insurance. The Home Valu benefit plans did not pay approximately $490,000 in claims incurred in November and December 2009 and January 2010.

A copy of the DOL complaint can be found here:

Unofficial: IRS Will Pursue Employers for Shared Responsibility Payments Starting in 2015

March 18, 2013 at 11:04 am | Posted in Affordable Care Act, Employment Law, Federal Laws, Federal Taxes, Health Care, IRS, Medical, PPACA, Regulations | Leave a comment
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From the Bloomberg News Service

Employers who may have a shared responsibility payment under tax code Section 4980H for not offering health care to full-time employees under the Affordable Care Act can expect to hear from the Internal Revenue Service about payments due beginning in 2015, but only if IRS has strong evidence to support its assessment, an IRS official said March 12.

Employers will be able to dispute or explain why the shared responsibility payment assessment may be incorrect, similar to standard IRS notice and demand procedures for assessable payments, Frederick Schindler, director of implementation oversight at the IRS Affordable Care Act Office, told members of the payroll industry at the American Payroll Association 2013 Capital Summit in Washington, D.C.

However, the IRS will make its assessment based on a variety of information provided by employers’ insurers, from the Department of Health and Human Services, and other third-party reporting to which IRS will have access, Schindler said.

“All of that information will be utilized before we go to the employer,” Schindler added.

Beginning Jan. 1, 2014, the shared responsibility payment for large employers, generally those with 50 full-time or full-time equivalent employees, is triggered if at least one employee receives a premium tax credit to help them pay for health coverage, if an employer does not provide a plan that meets minimum coverage requirements. Employees will use the tax credit to help purchase individual coverage on an affordable insurance exchange.

Protector Group Note: The statement of Mr. Schindler constitutes “informal” IRS guidance and should not be construed as a basis for an employer to assure full compliance with Section 4980H in 2014.

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