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| | Special #88 April 22, 2021 |
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| HR and Employment Law News |
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Employer, audit thyself!
BY ROBIN SHEA ON 4.16.21
POSTED IN AMERICANS WITH DISABILITIES ACT, CONTINGENT WORKERS, CORONAVIRUS, CORPORATE CULTURE, DOCUMENTATION, FAMILY AND MEDICAL LEAVE ACT, FLSA, FMLA, HARASSMENT, HR, INDEPENDENT CONTRACTOR, LABOR RELATIONS, POLITICS, PROTECTED CONCERTED ACTIVITY, REASONABLE ACCOMMODATION, REFERENCE, SAFETY, VACCINATION, WAGE-HOUR, WORKERS' COMPENSATION Before the coming crackdown.
We expect federal agencies under the Biden Administration to move in a not-so-employer-friendly direction as soon as they have a chance to get settled in. While they're still settling in, this is the time for employers to review their practices, figure out where they're behind or doing wrong, and get themselves into shape before the boom is lowered. Here are 10 areas to scrutinize.
No. 10: Reference policies. A hat tip on this one to Allen Smith of HR Magazine. Are you handling requests for references properly? Are all requests for references sent to Human Resources? Are you providing only dates of employment and positions held, and no other information? Are you making appropriate and consistent exceptions to help an employee whose position was eliminated through no fault of his own, or to alert a prospective employer that your ex-employee is a violent sociopath? In the latter circumstance, are you complying with your state laws about truthful references? And do you have a handle on the number of managers who are doing their own thing and not following your policy? Read More>>
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| | | Are COBRA participants entitled to a refund for premiums paid during the COVID-19 pandemic?,
(Apr. 19, 2021)
Issue: Todd, an employee who was laid off in December 2020, has requested a refund of his COBRA premiums pursuant to the subsidy provision in the American Rescue Plan Act (ARPA). Are former employees entitled to a refund for premiums they paid during the COVID-19 pandemic?
Answer: ARPA, which was signed into law on March 11, 2021, includes a temporary six-month COBRA subsidy that allows qualified individuals to stay on their employer-sponsored health plan at no cost. Individuals qualify for the COBRA subsidy when they have lost group health plan coverage due to a layoff, furlough, or reduction in hours. The subsidy is not available for employees who have voluntarily left employment or who have been terminated due to gross misconduct. It became available on April 1, 2021, and generally ends on September 30, 2021.
According to frequently asked questions (FAQs) issued by the U.S. Department of Labor, the COBRA subsidy under ARPA is only for coverage periods from April 1, 2021, through September 30, 2021. Individuals may not receive refunds for any COBRA premiums paid before April 1, 2021. However, if an individual had already paid his or her COBRA premium for the month of April, the party to whom the payment was made must issue a credit against future payments (or a refund in certain circumstances) to the individual.
Source: FAQs About COBRA Premium Assistance Under the American Rescue Plan Act of 2021, April 7, 2021; https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/cobra-premium-assistance-under-arp.pdf.
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Join us for a Free informational Webinar!
Topic: Create an Army of Problem Solvers!
Date: April 28th
12:00 PM – 1:00 PM
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¶45,783 New DOL guidance maps out fiduciary rule requirements — AGENCY GUIDANCE,
(Apr. 16, 2021)
Written by Pamela Wolf, J.D
The Department of Labor has issued guidance on fiduciary investment advice for retirement investors, employee benefit plans, and investment advice providers regarding the DOL’s "Improving Investment Advice for Workers & Retirees" exemption (PTE 2020-02), previously confirmed to go into effect as scheduled on February 16, 2021.
In the meantime, the Labor Department said that it is continuing to review issues of fact, law and policy related to the exemption, and more generally, its regulation of fiduciary investment advice.
Guidance documents. The DOL has issued two documents:
- For investors. "Choosing the Right Person to Give You Investment Advice: Information for Investors in Retirement Plans and Individual Retirement Accounts" includes questions that a retirement investor can ask when interviewing potential advice providers, background information to help them understand the purpose of each question, and investor-focused frequently asked questions about the exemption.
- For advice providers. A set of compliance-focused frequently asked questions provides guidance for investment advice providers who are relying, or planning to rely, on the exemption.
Both guidance documents are limited to the application of federal retirement laws to advice concerning investments in plans covered by ERISA, such as 401(k) plans, and the Internal Revenue Code, such as IRAs.
Prohibited transaction relief. The exemption conditions prohibited transaction relief on financial institutions—SEC- and state-registered investment advisers, broker-dealers, banks, and insurance companies—and their investment professionals (employees, agents, and representatives) providing advice in compliance with "Impartial Conduct Standards," according to the guidance for advice providers.
Acknowledgment of fiduciary status. Financial institutions must also acknowledge in writing their and their investment professionals’ fiduciary status under Title I of ERISA and the Internal Revenue Code, as applicable, when providing investment advice to the retirement investor. They must in addition describe in writing the services to be provided and the financial institutions’ and investment professionals’ material conflicts of interest.
Rollover recommendations. The exemption further requires financial institutions to document the reasons that a rollover recommendation is in the best interest of the retirement investor and to provide that documentation to the retirement investor.
Policies and procedures. Financial institutions must adopt policies and procedures prudently designed to ensure compliance with the Impartial Conduct Standards and that mitigate conflicts of interest. They further must conduct an annual retrospective review of compliance.
Eligibility to rely on exemption. To ensure that financial institutions provide reasonable oversight of investment professionals and adopt a culture of compliance, financial institutions and investment professionals are ineligible to rely on the exemption if:
- Within the previous 10 years, they were convicted of certain crimes arising out of their provision of investment advice to retirement investors;
- They have engaged in systematic or intentional violation of the exemption’s conditions; or
- They provided materially misleading information to the DOL in relation to their conduct under the exemption.
Impartial Conduct Standards. The "Impartial Conduct Standards" are consumer protection standards aimed at ensuring that financial institutions and investment professionals adhere to fiduciary norms and basic standards of fair dealing. These standards specifically require financial institutions and investment professionals to meet the following requirements.
Best interest. Give advice that is in the "best interest" of the retirement investor, which has chief components of prudence and loyalty:
- Prudence. Under the prudence standard, the advice must meet a professional standard of care as specified in the text of the exemption.
- Loyalty. Under the loyalty standard, advice providers may not place their own interests ahead of the interests of the retirement investor, or subordinate the retirement investor’s interests to their own.
Reasonable compensation. Advice providers must charge no more than reasonable compensation and comply with federal securities laws regarding "best execution."
No misleading statements. Advice providers must make no misleading statements about investment transactions and other relevant matters.
"The retirement investor guidance provides helpful information regarding the importance of selecting an investment advice provider who is a fiduciary and the protections that are provided to retirement investors under the "Improving Investment Advice for Workers & Retirees" exemption," said Acting Assistant Secretary of Labor for Employee Benefits Security Ali Khawar. "The compliance-focused frequently asked questions provide assistance to financial institutions and investment professionals as they ramp up compliance with the exemption."
Source: Written by Pamela Wolf, J.D.
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| | Employer gets whacked on workers' comp, FMLA overlap
BY ROBIN SHEA ON 4.9.21
POSTED IN FAMILY AND MEDICAL LEAVE ACT, FMLA, WORKERS' COMPENSATION
Bless this employer's heart.
Ten years ago or so, every employment lawyer and his sister was calling the interaction between workers' compensation, the Family and Medical Leave Act, and the Americans with Disabilities Act "the Bermuda Triangle."
The idea was that trying to keep all of these laws in mind while dealing with injured employees caused employers to become disoriented, without a compass, and lost.
I've never been crazy about that metaphor, although I've been guilty of using it. I never heard of an employer who mysteriously vanished forever after having a workers' comp-FMLA-ADA issue.
And, anyway, that whole Bermuda Triangle hype may be a hoax.
A better metaphor, in my opinion, is Whack-a-Mole. An employer thinks it's fulfilled its obligations, and then -- whoop! -- up pops a new "mole."
"OK, we have the workers' comp covered."
Whoop! Oh, no -- over there -- it's the FMLA!
Whoop! Darn! Now it's the ADA!
Whoop! Wait -- to your left -- workers' comp retaliation!
Whoop! Title VII? Where the heck did that come from?*
*Employers should be accommodating pregnancy and related conditions under many state laws, and arguably under federal law. (But pregnancy is almost never a workers' comp issue because, thank heaven, most pregnancies are not work-related.)
"Whack-a-mole" as a metaphor isn't much more original than "the Bermuda Triangle," but it's a lot more accurate.
I could have sworn that this post had a point. Oh, yeah.
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Georgia Employers' Association |
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