Judge strikes down parts of DOL's emergency paid leave regs


Dive Brief:

  • Several features of the U.S. Department of Labor (DOL)'s regulations implementing the paid-leave provisions of the Families First Coronavirus Response Act (FFCRA) exceeded the agency's authority under federal law, a federal judge has ruled (State of New York v. U.S. Department of Labor, et al., No. 20-CV-3020 (S.D.N.Y. Aug. 3, 2020)).
  • Among the struck-down DOL regulations are: the final rule's work-availability requirement; its definition of "health care provider" for the purposes of excluding certain healthcare sector employees from emergency leave benefits; its requirement that an employee secure employer consent for intermittent FFCRA leave; and its requirement that documentation be provided by an employee before taking FFCRA leave.
  • The federal judge permitted the outright ban on intermittent leave for certain qualifying reasons — specifically, intermittent leave based on qualifying conditions that correspond with an increased risk of infection — as well as the substance of the final rule's documentation requirement to stand. The court, the judge said, "sees no reason that the remainder of the Rule cannot operate as promulgated in the absence of the invalid provisions."
Dive Insight:

The ruling is an important one for the nation's first-ever federal paid leave law for private-sector workers. New York originally filed the suit in April following the release of DOL's FFCRA implementation guidance earlier in the month. Shortly before the lawsuit's filing, Congressional Democrats criticized DOL's final rule in a letter to Secretary of Labor Eugene Scalia that said the agency's guidance either deviated from the FFCRA's statute or did not have a basis in it.

Asked about the letter, a DOL spokesperson told HR Dive in April that the agency took "quick action to implement paid sick leave and expanded paid family and medical leave provides necessary support for America's workforce in uncertain times."

The federal judge said in the ruling that DOL faced "considerable pressure" in promulgating its final rule. "This extraordinary crisis has required public and private entities alike to act decisively and swiftly in the face of massive uncertainty, and often with grave consequence," the judge noted. "But as much as this moment calls for flexibility and ingenuity, it also calls for renewed attention to the guardrails of our government. Here, DOL jumped the rail."

Management-side attorneys expect the ruling to be appealed, Bloomberg Law reported. The decision applies nationally, creates uncertainty for employers who experienced pandemic-related shutdowns or reductions in force and requires healthcare employers to "re-examine whether they must provide paid leave" to certain employees, Sami Assad, partner at FordHarrison LLP and chair of the firm's Home Healthcare Practice Group, wrote in an article.

The FFCRA applies to U.S. employers with fewer than 500 employees, but those with fewer than 50 employees may be exempt from two of the law's paid-leave requirements. An authorized officer of the business must use a three-prong test to determine whether the employer may claim an exemption. Also, the IRS has published guidance detailing how small businesses can receive 100% reimbursement for paid leave pursuant to the FFCRA.

SOURCE: Golden, R. (04 August 2020) "Judge strikes down parts of DOL's emergency paid leave regs" (Web Blog Post). Retrieved from https://www.hrdive.com/news/new-york-judge-strikes-down-dol-emergency-paid-leave-reg/582856/


The Saxon Advisor - June 2020

Compliance Check

what you need to know


Eligible Automatic Contribution Arrangement (EACA). For failed ADP/ACP tests, corrective distributions must be made towards participants within 6 months after the plan year ends – June 30, 2020.

SF HSCO Expenditures. The last day to submit SF HSCO expenditures, if applicable*, for Q2 is July 30, 2020. *Applicable for employers with 20+ employees doing business in SF and Non-Profits with 50+ employees.

Form 5500 and Form 5558. The deadline for the 2019 plan year’s Form 5500 and Form 5558 is July 31, 2020 (unless otherwise extended by Form 5558 or automatically with an extended corporate income tax return).

Form 8955-SSA. Unless extended by Form 5558, Form 8955-SSA and the terminated vested participant statements for the plan year of 2019 are due July 31, 2020.

Form 5558. Unless there is an automatic extension due to corporate income tax returns, a single Form 5558 and 8955-SSA is due by 2½ months for the 2019 plan year.

Form 5330. For failed ADP/ACP tests regarding excise tax, Form 5330 must be filed by July 31, 2020.

401(k) Plans. For ADP/ACP testing, the recommended Interim is due August 1, 2020.

In this Issue

  • Upcoming Compliance Deadlines:
    • Eligible Automatic Contribution Arrangement (EACA)
    • The deadline for the 2019 plan year’s Form 5500 and Form 5558 is July 31, 2020.
  • Medicare 101: A Quick Guide For Employers
  • Fresh Brew Featuring Abby Graham
  • This month’s Saxon U: The Steps Of An Internal Investigation
  • #CommunityStrong: Pick your Own Charity! One of our Own, Deborah Raines, made a meal for a family in need at her temple!

The Steps Of An Internal Investigation

Join us for this interactive and educational Saxon U seminar with Pandy Pridemore, The Human Resources USA, LLC, as we discuss the steps of an internal investigation.

Medicare 101: A Quick Guide For Employers

Bringing the knowledge of our in-house advisors right to you...


Medicare is a governmentfunded health insurance program for those aged 65 and above, those under 65 with certain disabilities, and those with End State Renal Disease (ESRD) or Amyotrophic Lateral Sclerosis (ALS). Employers that offer group health insurance plans to their employees have an interest in learning how employees’ entitlement to Medicare benefits can affect the administration of those plans.

“Ask a licensed agent for assistance. Advertisements can be confusing, and everyone wants to make the right choice. Using my expertise, I take the fear out of the decision making, so my clients can make an informed decision concerning their healthcare.”

Advice from Olivia

Fresh Brew Featuring Abby Graham

"It’s not that hard to be well!"


This month’s Fresh Brew features Abby Graham, Wellness Director at Saxon.

Abby’s favorite brew is Coffee. Her favorite local spot to grab her favorite brew is Coffee Emporium.

Scott’s favorite snack to enjoy with his brew is Reese’s Pieces Cookies.

Learn More About Abby

This Month's #CommunityStrong:

Each member of Saxon will be choosing their own charity that they want to make a positive impact on!

This May, June & July, the Saxon team and their families will be choosing their own charity that they would like to make a positive impact towards!

Are you prepared for retirement?

Saxon creates strategies that are built around you and your vision for the future. The key is to take the first step of reaching out to a professional and then let us guide you along the path to a confident future.

Monthly compliance alerts, educational articles and events
- courtesy of Saxon Financial Advisors.


The Saxon Advisor - May 2020

Compliance Check

what you need to know


Eligible Automatic Contribution Arrangement (EACA). For failed ADP/ACP tests, corrective distributions must be made towards participants within 6 months after the plan year ends – June 30, 2020.

SF HSCO Expenditures. The last day to submit SF HSCO expenditures, if applicable*, for Q2 is July 30, 2020. *Applicable for employers with 20+ employees doing business in SF and Non-Profits with 50+ employees.

Form 5500 and Form 5558. The deadline for the 2019 plan year’s Form 5500 and Form 5558 is July 31, 2020 (unless otherwise extended by Form 5558 or automatically with an extended corporate income tax return).

Form 8955-SSA. Unless extended by Form 5558, Form 8955-SSA and the terminated vested participant statements for the plan year of 2019 are due July 31, 2020.

Form 5558. Unless there is an automatic extension due to corporate income tax returns, a single Form 5558 and 8955-SSA is due by 2½ months for the 2019 plan year.

Form 5330. For failed ADP/ACP tests regarding excise tax, Form 5330 must be filed by July 31, 2020.

401(k) Plans. For ADP/ACP testing, the recommended Interim is due August 1, 2020.

In this Issue

  • Upcoming Compliance Deadlines:
    • Eligible Automatic Contribution Arrangement (EACA)
    • The deadline for the 2019 plan year’s Form 5500 and Form 5558 is July 31, 2020.
  • Providing an HSA, FSA, or HRA Health Plan for your Employees
  • Fresh Brew Featuring Lexi Kofron
  • This month’s Saxon U: How To Legally Work With Gig And Contract Workers
  • #CommunityStrong: Families Forward Donation Drive

How To Legally Work With Gig And Contract Workers

Join us for this interactive and educational Saxon U seminar with Pandy Pridemore, The Human Resources USA, LLC, as we discuss how to legally work with Gig and Contract Workers.

Providing an HSA, FSA, or HRA Health Plan for your Employees

Bringing the knowledge of our in-house advisors right to you...


When open enrollment hits annually, it is not uncommon for employers to feel exasperated when staring down a list of acronyms such as HSA, FSA and HRA. As it should go without saying, the most common first thought is, “What does any of this mean?” Even the most seasoned experts have difficulty with understanding the complexities of various care options.

““It is your account; yours if you leave the employer and can contribute as long as you have an HDHP and can use the funds until they are gone, even if you are no longer in an HDHP.” said Kelley Bell, a Group Health Benefits Consultant at Saxon Financial.

Advice from Kelley

Fresh Brew Featuring Lexi Kofron

"Stay calm and collected on phone calls, and stay organized!"


This month’s Fresh Brew features Lexi Kofron, a Client Service Specialist at Saxon.

Lexi’s favorite brew is a Cinnamon Dolce Latte. Her favorite local spot to grab his favorite brew is at Starbucks

Scott’s favorite snack to enjoy is Pretzels and Hummus.

Learn More About Lexi

This Month's #CommunityStrong:
Families Forward Donation Drive

This May the Saxon family donated a bunch of household items and outdoor activities to Families Forward. Their staff goes out each week in masks and gloves to hand out these donations to the families in need through their program. Here are some pictures they provided when they passed out the donations and our trunk load of donations!

Are you prepared for retirement?

Saxon creates strategies that are built around you and your vision for the future. The key is to take the first step of reaching out to a professional and then let us guide you along the path to a confident future.

Monthly compliance alerts, educational articles and events
- courtesy of Saxon Financial Advisors.


The Saxon Advisor - April 2020

Compliance Check

Easy to Digest, Monthly Need-to-Knows

The Current 30

APRIL 1: Required Minimum Distribution. Deadline to take first RMD for terminated participants following attainment of age 70 1/2 or retiring after 70 1/2 in prior calendar year.

APRIL 1: Form 1099-R. Deadline for employers to file electronically with the IRS.

APRIL 15: Excess Contribution Refunds (Over IRS Limit). Deadline to return excess retirement plan deferrals for the previous plan year.

APRIL 30: Annual Audit TimeFor large 5500 filers, it is time to select an auditor and schedule your annual audit.


A Look Forward

MAY 15: Participant-Directed Plans. Benefit Statements for participant-directed plans and Participant Fee Disclosures are due.

JUNE 30: Eligible Automatic Contribution Arrangement (EACA). Corrective distributions for failed ADP/ACP tests must be made within 6 months after the Plan Year end.

JULY 31: Form 5500 and Form 5558. The deadline for the 2019 plan year’s Form 5500 and Form 5558 (5500 filing extension to October 15th).

JULY 31: Form 8955-SSA. Deadline to file Form 8955-SSA and the terminated vested participant statements for the plan year of 2019 (unless extended by Form 5558).

JULY 31: Form 5330. Deadline to file for excise tax on failed ADP/ACP test.

In this Issue

How to Legally Work With Gig and Contract Workers

Join our May Saxon University as Pandy Pridemore discusses how to legally work with Gig and Contract Workers

What You Need to Know: The SECURE Act

Bringing the knowledge of our in-house advisors right to you...


In December of 2019, President Donald Trump passed the Setting Every Community Up for Retirement Enhancement Act or SECURE Act. Some of the Act aims at making it easier for small business owners to create more affordable and easier to administer retirement plans.

“There is a lot of hype in the government and media about how the SECURE Act will make it cheaper to sponsor a plan. I don’t know if recordkeepers could lower their annual costs any more than they have over the last 8 or 9 years; but it definitely will provide lower start-up costs through the tax credits, and make it easier to administer plans if utilizing a Safe Harbor approach or a PEP.”

Advice from Todd

Fresh Brew Featuring Olivia Childs

"Be sure to do the follow-up after a conversation!"


Olivia Childs is a Saxon Senior Solutions Specialist whose favorite catchphrase is, “We rise by lifting others,” by Eleanor Roosevelt. We invite you take a moment to get to know Olivia!

Olivia’s favorite brew is Chai Tea Latte. She admits that enjoying her drink while relaxing at Half Day Cafe and snacking on an Everything Bagel is hard to beat!

Learn More About Olivia

This Month's #CommunityStrong:
Donation Drive for Families Forward

It's time to work together to help meet a top priority need of a valued community program and the families they serve.

Get Involved!

Are you taking a strategic approach to your financial big picture?

Saxon creates innovative strategies that will help you figure out how to get there, plan for the risks along the way, navigate complex tax code and understand the steps you need to take to protect and secure your future.

Monthly compliance alerts, educational articles and events
- courtesy of Saxon Financial Advisors.


The Saxon Advisor - March 2020

Compliance Check

what you need to know


Section 6055/6056 Reporting (Electronic Filing Deadline). Applicable large employers (ALEs) that sponsor self-insured health plans are required by Internal Revenue Code Sections 6055 and 6056 to report information about the coverage to the IRS yearly. IRS Forms 1094-C and 1095-C are used to report coverage information. March 31, 2020, is the deadline to submit these forms if employers are filing electronically.

COBRA General Notice. Employers who provide group health plans must provide a written General Notice of COBRA rights to all covered employees and spouses (if applicable). This notice must be provided 90 days after health plan coverage begins.

Summary Plan Description (SPD). Employers who offer group health plans that are subject to ERISA must provide Summary Plan Descriptions (SPD) to employees who newly enrolled at the beginning of the plan year by March 31, 2020.

Form 1099-R (Electronic Filing Deadline). Employers must file Form 1099-R with the IRS by March 31, 2020, if they are filed electronically.

Form 5330 Excise Tax Return. The Form 5330 excise tax return and payment for excess 2018 ADP/ACP contributions are due March 31, 2020.

Excess Contribution Refunds (over IRS limit). April 15, 2020 is the deadline to return excess retirement plan contributions for elective deferrals exceeding the 402(g) limits.

In this Issue

  • Upcoming Compliance Deadlines
  • Paving the Road to a Successful Portfolio Featuring Brian Bushman
  • Upcoming Saxon U Webinar: Employee Navigator Workshop with Jake Meyer
  • Fresh Brew Featuring Jake Meyer
  • #CommunityStrong: American Heart Association Heart Mini Fundraising & School Donation Drive

Employee Navigator Workshop

Join us for this interactive and educational Saxon U webinar with Jake Meyer, Saxon Financial Services, as we walk you through certain aspects of Navigator and teach you how to use the most common features.

Paving the Road to a Successful Portfolio

Bringing the knowledge of our in-house advisors right to you...


Determining a proper asset allocation is an important first step in creating your portfolio and planning how it will grow in the future. Asset allocation is the process of diversifying your investments into different asset classes based on the investor’s time horizon, their goals and how much risk they can tolerate.

“People always ask me what they can invest in that will make them a lot of money without the chance of losing any,” said Brian Bushman, Saxon Financial Advisor.

Advice from Brian

Fresh Brew Featuring Jake Meyer

“Educate your employees about their benefits. The more they understand them, the more they will realize how big of a benefit they are.”


This month’s Fresh Brew features Jake Meyer, an Account Executive at Saxon.

Scott’s favorite brew is Rhinegeist Truth, a local Indian Pale Ale from the Rhinegeist Brewery in Cincinnati, Ohio.

Jake doesn’t have a particular snack that he eats when sipping on his favorite brew. He instead likes to enjoy the hops in his favorite IPA.

Learn More About Jake

This Month's #CommunityStrong:
American Heart Association Heart Mini Fundraising

This March, the Saxon team and their families teamed up to raise money for the American Heart Association Heart Mini!

Do you have a strategic approach to the totality of your financial picture?

Saxon creates innovative strategies that will help you figure out how to get there, plan for the risks along the way, navigate complex tax code and understand the steps you need to take to protect and secure your future.

Monthly compliance alerts, educational articles and events
- courtesy of Saxon Financial Advisors.


The Saxon Advisor - February 2020

Compliance Check

what you need to know


Section 6055/6056 Reporting. Employers must file Forms 1094-B and 1095-B, and Forms 1094-C and 1095-C with the IRS by February 28, 2020 if they are filed on paper.

Form 1099-R Paper Filing. Employers must file Form 1099-R with the IRS by February 28, 2020 if they are filed on paper.

CMS Medicare Part D Disclosure. Employers that provide prescription drug coverage must disclose to the CMS whether the plan’s prescription drug coverage is creditable or non-creditable.

Summary of Material Modifications Distribution. Employers who offer a group health plan that is subject to ERISA must distribute a SMM for plan changes that were adopted at the beginning of the year that are material reductions in plan benefits or services.

Section 6055/6056 Individual Statements (2019 EXTENDED DEADLINE). Applicable large employers (ALEs) that sponsor self-insured health plans must disclose information about plan coverage to covered employees each year. This deadline was extended from January 31, 2020, to March 2, 2020, this year by the IRS.

ADP/ACP Refunds. Corrective refunds for a failed ADP/ACP test must be made by March 15, 2020, to avoid 10 percent excise tax penalties.

Section 6055/6056 Reporting (Electronic Filing Deadline). Applicable large employers (ALEs) that sponsor self-insured health plans are required by Internal Revenue Code Sections 6055 and 6056 to report information about the coverage to the IRS yearly. IRS Forms 1094-C and 1095-C are used to report coverage information. March 31, 2020, is the deadline to submit these forms if employers are filing electronically.

COBRA General Notice. Employers who provide group health plans must provide a written General Notice of COBRA rights to all covered employees and spouses (if applicable). This notice must be provided 90 days after health plan coverage begins.

Summary Plan Description (SPD). Employers who offer group health plans that are subject to ERISA must provide Summary Plan Descriptions (SPD) to employees who newly enrolled at the beginning of the plan year.

Form 1099-R (Electronic Filing Deadline). Employers must file Form 1099-R with the IRS by March 31, 2020, if they are filed electronically.

Form 5330. The Form 5330 excise tax return and payment for excess 2018 ADP/ACP contributions are due March 31, 2020.

In this Issue

  • Upcoming Compliance Deadlines
  • How to Speak to Your Employees About Their Intimidating Benefits – Featuring Jamie Charlton
  • Fresh Brew Featuring Nat Gustafson
  • This month’s Saxon U: What Employers Should Know About the SECURE Act
  • March’s Saxon U: Saxon’s Humana GO365 Annual Wellness Clinic
  • #CommunityStrong: American Heart Association Heart Mini Fundraising

What Employers Should Know About the SECURE Act

Join us for this interactive and educational Saxon U seminar with Todd Yawit, Director of Employer-Sponsored Retirement Plans at Saxon Financial Services, as we discuss what the SECURE Act is and how it impacts your employer-sponsored retirement plan.

How to Speak to Your Employees About Their Intimidating Benefits

Bringing the knowledge of our in-house advisors right to you...


Employers spend thousands annually to secure and offer benefits to their employees. However, a small amount of time and money are devoted to ensuring employees understand and appreciate their benefits. Properly communicating – what you say, how you say it and to whom you say it to – can make a tremendous difference in how employees think, feel and react to their benefits, employer and fellow co-workers.

In this installment of CenterStage, Jamie Charlton, founding partner and CEO of Saxon Financial Services, discusses the importance of offering sound education of benefits to employees, as well as how to effectively communicate their benefits in a clear, concise manner.

Advice from Jamie

Fresh Brew Featuring Nat Gustafson

“Always be prepared.”


This month’s Fresh Brew features Nat Gustafson, an Account Manager at Saxon.

In his free time, Nat enjoys snowboarding. When thinking about his greatest adventure, he remembers traveling around Italy. He lives by the catchphrase of, “Roll up your sleeves.”

Nat’s favorite brew is Rhinegeist Truth. His favorite local spot to grab his favorite brew is Mount Lookout Tavern on Linwood Avenue.

Nat’s favorite snack to enjoy with his brew is Chicken wings.

Learn More About Nat

This Month's #CommunityStrong:
American Heart Association Heart Mini Fundraising

This January, February & March, the Saxon team and their families will be teaming up to raise money for the American Heart Association Heart Mini!

Saxon’s Humana GO365 Annual Wellness Clinic

Learn what Go365 is, how it works, how to create engaged employees and how to maximize the 15% wellness incentive credit from the program.

Monthly compliance alerts, educational articles and events
- courtesy of Saxon Financial Advisors.


The Saxon Advisor - January 2020

Compliance Check

what you need to know


Form W-2s are due January 31, 2020. January 31 is the deadline for employers to distribute Form W-2s to employees. Large employers – employers who have more than 250 W-2s – must include the aggregate cost of health coverage.

Form 1099-Rs are due January 31, 2020. Employers must distribute Form 1099-Rs to recipients of 2019 distributions.

Form 945 Distributions. Form 945s must be distributed to plan participants by January 31, 2020, for 2019 non payroll withholding of deposits if they were not made on time and in full to pay all taxes that are due.

Section 6055/6056 Reporting. Employers must file Forms 1094-B and 1095-B, and Forms 1094-C and 1095-C with the IRS by February 28, 2020 if they are filed on paper.

Form 1099-R Paper Filing. Employers must file Form 1099-R with the IRS by February 28, 2020 if they are filed on paper.

CMS Medicare Part D Disclosure. Employers that provide prescription drug coverage must disclose to the CMS whether the plan’s prescription drug coverage is creditable or non-creditable.

Summary of Material Modifications Distribution. Employers who offer a group health plan that is subject to ERISA must distribute a SMM for plan changes that were adopted at the beginning of the year that are material reductions in plan benefits or services

In this Issue

  • Upcoming Compliance Deadlines
  • Traditional IRA, Roth IRA, 401(k), 403(b): What’s the Difference?
  • Fresh Brew Featuring Scott Langhorne
  • This month’s Saxon U: What Employers Should Know About the SECURE Act
  • #CommunityStrong: American Heart Association Heart Mini Fundraising

What Employers Should Know About the SECURE Act

Join us for this interactive and educational Saxon U seminar with Todd Yawit, Director of Employer-Sponsored Retirement Plans at Saxon Financial Services, as we discuss what the SECURE Act is and how it impacts your employer-sponsored retirement plan.

Traditional IRA, Roth IRA, 401(k), 403(b): What's the Difference?

Bringing the knowledge of our in-house advisors right to you...


If you haven’t begun saving for retirement yet, don’t be discouraged. Whether you begin through an employer sponsored plan like a 401(k) or 403(b) or you begin a Traditional or Roth IRA that will allow you to grow earnings from investments through tax deferral, it is never too late or too early to begin planning.

“A major trend we see is that if people don’t have an advisor to meet with, they tend to invest too conservatively, because they are afraid of making a mistake,” said Kevin Hagerty, a Financial Advisor at Saxon Financial.

Advice from Kevin

Fresh Brew Featuring Scott Langhorne

“Pay close attention to detail.”


This month’s Fresh Brew features Scott Langhorne, an Account Manager at Saxon.

Scott’s favorite brew is Bud Light. His favorite local spot to grab his favorite brew is wherever his friends and family are.

Scott’s favorite snack to enjoy with his brew is wings.

Learn More About Scott

This Month's #CommunityStrong:
American Heart Association Heart Mini Fundraising

This January, February & March, the Saxon team and their families will be teaming up to raise money for the American Heart Association Heart Mini! They will be hosting a Happy Hour at Fretboard Brewing Company Wednesday, January 29, from 4 p.m. - 7 p.m. to raise money.

Are you prepared for retirement?

Saxon creates strategies that are built around you and your vision for the future. The key is to take the first step of reaching out to a professional and then let us guide you along the path to a confident future.

Monthly compliance alerts, educational articles and events
- courtesy of Saxon Financial Advisors.


DOL updates FLSA regular rate rule

With the New Year right around the corner, it's important to know what rules are being updated. The U.S. Department of Labor has updated the "regular rate of pay" to calculate overtime pay. This standard is used to calculate overtime pay under the Fair Labor Standards Act (FLSA). Read this blog post for more information on this final rule.


The U.S. Department of Labor (DOL) has issued a final rule updating the "regular rate of pay" standard used to calculate overtime pay under the Fair Labor Standards Act (FLSA), according to a notice to be published in the Federal Register Dec. 13.

In the rule, DOL clarifies when certain employer benefits may be excluded when calculating overtime pay for a non-exempt employee, including bona fide meal periods, reimbursements, certain benefit plan contributions, state and local scheduling law payments and more. The rule also clarifies how employers may determine whether a bonus is discretionary or nondiscretionary.

The rule will take effect Jan. 12, 2020.

The rule will likely result in employers taking a closer look at their benefits packages, Susan Harthill, partner at Morgan Lewis, told HR Dive in an emailed statement.

A number of employer advocates that submitted comments on DOL’s Notice of Proposed Rulemaking (NPRM), including the Society for Human Resource Management, supported excluding employee benefits like gym memberships, tuition assistance and adoption and surrogacy services from regular rate calculations. Gym memberships and tuition assistance are generally excludable, according to DOL, but the agency said only some forms of adoption assistance would be excludable and that most surrogacy assistance payments would not be​.

Employers also inquired about public transportation and childcare subsidies. In the final rule, DOL said public transportation benefits would not be excludable, noting that the agency "has long acknowledged that employer-provided parking spaces are excludable from the regular rate but commuter subsidies are not." But it did add clarifying language around childcare, saying that while "routinely-provided childcare" must be included in the regular rate, emergency childcare services — if those services are not provided as compensation for hours of employment and are not tied to the quantity or quality of work performed — may be excluded.

DOL also offered additional details about its treatment of tuition reimbursement and education-related benefits. As it stated in the NPRM, the agency said that as long as tuition programs are offered to employees regardless of hours worked or services rendered are "contingent merely on one’s being an employee," such programs qualify as "other similar payments" excludable from the regular rate. This includes payment for an employee's current coursework, online coursework, payment for an employee’s family member’s tuition and certain student-loan repayment plans, DOL said.

HR teams should respond by performing audits of the pay codes for benefits that would be impacted, Tammy McCutchen, shareholder at Littler Mendelson, told HR Dive in an interview: "This is a good time to get your calculations correct." McCutchen suggested that employers conduct audits first before deciding whether to expand benefits options in light of the rule. She added that it's an employer's responsibility to notify payroll providers of any changes to exemptions.

Employers also will need to check state laws and consult with counsel ahead of implementing changes to employees' regular rates, as those laws may differ from DOL's new rule, Harthill said. Moreover, "[t]his is an interpretive rule and it remains to be seen whether courts will defer to DOL's interpretation of the rule or if any resultant exclusions are challenged," she added.

SOURCE: Golden, R. (12 December 2019) "DOL updates FLSA regular rate rule" (Web Blog Post). Retrieved from https://www.hrdive.com/news/dol-updates-flsa-regular-rate-rule/568954/


Labor Department Issues Final Rule on Calculating 'Regular Rate' of Pay

The New Year is bringing changes to the current "regular rate" of pay definition. Recently, the U.S. Department of Labor updated the FLSA definition of the regular rate of pay. The final ruling will take effect on January 15, 2020, and will provide modernized regulations for employers. Read this blog to learn more.


Employers now have more clarity and flexibility about which perks they can include in workers' "regular rate" of pay, which is used to calculate overtime premiums under the Fair Labor Standards Act (FLSA). The U.S. Department of Labor (DOL) announced a final rule that will take effect Jan. 15, 2020.

This is the first time in more than 50 years that the DOL has updated the FLSA definition of the regular rate of pay. Here's how the new law will impact employers.

Reduced Litigation Risk

Currently, the regular rate includes hourly wages and salaries for nonexempt workers, most bonuses, shift differentials, on-call pay and commissions. It excludes health insurance, paid leave, holiday and other discretionary bonuses, and certain gifts.

Many employers weren't sure, however, if certain perks had to be included in the regular rate of pay. So instead of risking costly lawsuits, some employers were choosing not to offer competitive benefits.

Employers were concerned that, for example, if they offered gym memberships to employees, they would have to add the cost to the regular-rate calculation, explained Kathleen Caminiti, an attorney with Fisher Phillips in Murray Hill, N.J., and New York City. The new rule says that gym membership fees and other similar benefits don't have to be included.

The new rule is intended to reduce the risk of litigation and enable employers to provide benefits without fearing that "no good deed goes unpunished," Caminiti said.

The final rule largely tracks the proposed rule, noted Susan Harthill, an attorney with Morgan Lewis in Washington, D.C. But it includes more clarifying examples and provides additional insight into the DOL's views on specific benefits, she said.

This rule was relatively uncontroversial, said Tammy McCutchen, an attorney with Littler in Washington, D.C. She noted that only a few employee and union groups commented against the rule, and those comments addressed very specific points.

"Employees like these benefits, too," she said.

Clarifications

The rule clarifies that employers may exclude the following perks from the regular-rate calculation:

  • Parking benefits, wellness programs, onsite specialist treatments, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits, and adoption assistance.
  • Unused paid leave, including paid sick leave and paid time off.
  • Certain penalties employers must pay under state and local scheduling laws.
  • Business expense reimbursement for items such as cellphone plans, credentialing exam fees, organization membership dues and travel expenses that don't exceed the maximum travel reimbursement under the Federal Travel Regulation system or the optional IRS substantiation amounts for certain travel expenses.
  • Certain sign-on and longevity bonuses.
  • Complimentary office coffee and snacks.
  • Discretionary bonuses (the DOL noted that the label given to a bonus doesn't determine whether it is discretionary).
  • Contributions to benefit plans for accidents, unemployment, legal services and other events that could cause a financial hardship or expense in the future.

"Unlike the upcoming changes to the FLSA white-collar regulations, which will have the force of law, this final rule is predominately interpretative in nature," said Joshua Nadreau, an attorney with Fisher Phillips in Boston. "Nevertheless, you should review these changes carefully to determine whether any of the clarifications are applicable to your workforce."

Employers who follow the rule can show that they made a good-faith effort to comply with the FLSA.

Paying Overtime Premiums

Under the FLSA, nonexempt employees generally must be paid 1.5 times their regular rate of pay for all hours worked beyond 40 in a week. But the regular rate includes more than just an employee's base hourly wage. Employers must consider "all remuneration for employment paid to, or on behalf of, the employee," except for specific categories that are excluded from the calculation, such as:

  • Discretionary bonuses.
  • Payments made when no work is performed, such as vacation or holiday pay.
  • Gifts.
  • Irrevocable benefits payments.
  • Payments for traveling expenses.
  • Premium payments for work performed outside an employee's regular work hours.
  • Extra compensation paid according to a private agreement or collective bargaining.
  • Income derived from grants or options.

The final rule updated and modernized the items that can be excluded from the calculation, Caminiti said. For example, the prior regulation referenced only holiday and vacation time, whereas the new rule recognizes that many employers lump together paid time off. The rule clarifies that all paid time off will be treated consistently as to whether it should be included in the regular rate.

The DOL eliminated some restrictions on "call-back" and similar payments but maintained that they can't be excluded from an employee's regular rate if they are prearranged.

The rule also addresses meal breaks, scheduling penalties, massage therapy and wellness programs.

"Some of these benefits didn't exist even a decade ago," McCutchen noted.

Harthill observed that the line between discretionary and nondiscretionary bonuses has created uncertainty and litigation. So the final rule's text and preamble give more examples and explanations about certain bonuses in response to commenters' requests. For example, the final rule provides more clarity about sign-on and longevity bonuses, but the DOL declined to specifically address other types of bonuses commenters asked about.

Action Items

"Now is the time for a regular-rate audit," McCutchen said. Compensation specialists should gather a list of all the earnings codes they're currently using for nonexempt employees, note each one they are including in the regular rate and compare that with the new rule to see if changes need to be made.

Most employers presently are not including paid sick time, tuition reimbursement and other perks in the regular-rate calculation, McCutchen noted, and DOL has confirmed the practice.

Now is also a good time for employers to decide if they want to start providing certain perks that are popular with employees, she said.

Harthill noted that it is important for employers to check whether the relevant state law tracks or departs from the federal law, because state laws might have stricter rules about overtime calculations.

SOURCE: Nagele-Piazza, L. (12 December 2019) "Labor Department Issues Final Rule on Calculating 'Regular Rate' of Pay" (Web Blog Post). Retrieved from https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Labor-Department-Issues-Final-Rule-on-Calculating-Regular-Rate-of-Pay-.aspx


IRS updates rules on retirement plan hardship distributions

Recently, the Internal Revenue Service (IRS) finalized updates to the hardship distribution regulations. These new regulations make the requirements more flexible and participant friendly. Read this blog post to learn more about these updated regulations.


Employers who allow for hardship distributions from their 401(k) or 403(b) plans should be aware that the Internal Revenue Service recently finalized updates to the hardship distribution regulations to reflect legislative changes. The new rules make the hardship distribution requirements more flexible and participant-friendly.

Hardship distributions are in-service distributions from 401(k) or 403(b) plans that are available only to participants with an immediate and heavy financial need. Plans are not required to offer hardship distributions. But there are certain requirements if a plan does offer hardship distributions. Generally, a hardship distribution may be made to a participant only if the participant has an immediate and heavy financial need, and the distribution is necessary and not in excess of the amount needed (plus related taxes or penalties) to satisfy that financial need.

An administrator of a 401(k) or 403(b) plan can determine whether a participant satisfies these requirements based on all of the facts and circumstances, or the administrator may rely on certain tests that the IRS has established, called safe harbors.

Over the last fifteen years, Congress has changed the laws that apply to hardship distributions. The new rules align existing IRS regulations with Congress’s legislative changes. Some of the changes are mandatory and some are optional. The new rules make the following changes. The following changes are required.

Elimination of six-month suspension.

Employers may no longer impose a six-month suspension of employee elective deferrals following the receipt of a hardship distribution.

Required certification of financial need.

Employers must now require participants to certify in writing or by other electronic means that they do not have sufficient cash or liquid assets reasonably available, in order to satisfy the financial need and qualify for a hardship distribution.

There were also some optional changes made to hardship distributions.

Removal of the requirement to take a plan loan.

Employers have the option, but are not mandated, to eliminate the requirement that participants take a plan loan before qualifying for a hardship distribution. In order to qualify for a hardship distribution, participants are still required to first take all available distributions from all of the employer’s tax-qualified and nonqualified deferred compensation plans to satisfy the participant’s immediate and heavy financial need. The optional elimination of the plan loan requirement may first apply beginning January 1, 2019.

Expanded safe harbor expenses to qualify for hardship.

The new hardship distribution regulations expand the existing list of pre-approved expenses that are deemed to be an immediate and heavy financial need. Prior to the new regulations, the list included the following expenses:

  • Expenses for deductible medical care under Section 213(d) of the Internal Revenue Code;
  • Costs related to the purchase of a principal residence;
  • Payment of tuition and related expenses for a spouse, child, or dependent;
  • Payment of amounts to prevent eviction or foreclosure related to the participant’s principal residence;
  • Payments for burial or funeral expenses for a spouse, child, or dependent; and
  • Expenses for repair of damage to a principal residence that would qualify for a casualty loss deduction under Section 165 of the Internal Revenue Code.

The new regulations expand this list of permissible expenses by adding a participant’s primary beneficiary under the plan as a person for whom medical, tuition and burial expenses can be incurred. The new regulations also clarify that the immediate and heavy financial need for principal residence repair and casualty loss expenses is not affected by recent changes to Section 165 of the Internal Revenue Code, which allows for a deduction of such expenses only if the principal residence is located in a federally declared disaster zone. Finally, the new regulations add an additional permissible financial need to the list above for expenses incurred due to federally declared disasters.

New contribution sources for hardships.

The law and regulations provide that employers may now elect to allow participants to obtain hardship distributions from safe harbor contributions that employers use to satisfy nondiscrimination requirements, qualified nonelective elective contributions (QNECS), qualified matching contributions (QMACs) and earnings on elective deferral contributions. However, 403(b) plans are not permitted to make hardship distributions from earnings on elective deferrals, and QNECS and QMACs are distributable as hardship distributions only from 403(b) plans not held in a custodial account.

As this list indicates, the new regulations make substantial changes to the hardship distribution rules.

The deadline for adopting this amendment depends on the type of plan the employer maintains and when the employer elects to apply the changes. Plan sponsors should work with their document providers and legal counsel to determine the specific deadlines for making amendments.

SOURCE: Tavares, L. (01 November 2019) "IRS updates rules on retirement plan hardship distributions" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/irs-updates-rules-on-401k-403b-plan-hardship-distributions