What To Do About ACA Reporting

By Jim Hamilton, jhamilton@boselaw.com, 317-684-5419

 

I have been advising employers to wait until February 1, 2017 before starting work on the 2016 1094 and 1095 forms. My hope was that, based upon all of the campaign rhetoric, the ACA reporting obligations would either be further delayed or repealed during the first couple of weeks of the Trump administration.

President Trump did issue an executive order on January 20, 2017 instructing all federal government agencies “to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement” of the ACA. Unfortunately, as of February 1, a lengthy delay or repeal of the reporting requirements has not occurred.

I now believe that employers need to start working on the 1094 and 1095 forms to meet the applicable filing and distribution deadlines. The deadline to file 1094-B, 1095-B, 1095-C and 1095-C (as applicable) with the IRS is February 28, 2017, or March 31, 2017 if filing electronically.  Form 1095-B or Form 1095-C (as applicable) must be distributed to employees by March 2, 2017.

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Executive Order Issued on ACA

[Official Guidance]  The White House, via Fox News

Text of President Trump’s Executive Order: ‘Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal’
Signed on Jan. 20, 2017. “To the maximum extent permitted by law, the Secretary of Health and Human Services and the heads of all other executive departments and agencies with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications…. To the maximum extent permitted by law, the head of each department or agency with responsibilities relating to healthcare or health insurance shall encourage the development of a free and open market in interstate commerce for the offering of healthcare services and health insurance, with the goal of achieving and preserving maximum options for patients and consumers.”

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U.S. Department of Labor Announces Final Rule on Overtime Exemption

The U.S. Department of Labor today issued its much anticipated final rule on the overtime exemption for “white collar” workers under the federal Fair Labor Standards Act. The final rule is expected to impact the overtime eligibility of 4.2 million workers who are currently classified as “exempt” (non-overtime eligible) under the executive, administrative and professional exemptions. The new rule is expected to cost employers $12 billion in overtime wages over the next decade.

The final rule takes effect on December 1, 2016, giving employers just six months to comply.

Under the new rule, the minimum salary threshold for the overtime exemption increases from $23,660 to $47,476 annually – or $913 per week. The rule provides for this rate to adjust automatically every three years based upon that same standard. The minimum annual salary threshold is expected to increase to more than $51,000 in 2020. The salary test, however, still does not apply to teachers. Also, the current “duties tests” for the executive, administrative and professional exemptions remain unchanged.

Given this development, we recommend that employers take the following steps immediately in preparation for the December 1 effective date:

1) Review the salary ranges of the positions in your school corporation that are currently considered exempt under the executive, administrative and professional exemptions.

2) For those classifications that straddle or fall below the new salary basis threshold, consider whether to adjust them upward to maintain the exempt status, or whether to reclassify them as non-exempt, overtime eligible, but only after first confirming that these employees indeed meet the applicable duties test.

3) For any positions becoming non-exempt, develop a plan to begin recording hours worked. Employers are required to keep accurate records of hours worked on a weekly basis for non-exempt workers. It may be helpful to begin tracking those hours now in order to better plan for the overtime conversion later this year.

4) Develop a strategy to convert employees to an overtime eligible pay methodology that complies with the new rule, minimizes the economic impact on your school corporation, maintains pay consistency for workers, and accounts for issues of employee morale.

5) If you want to continue to pay affected employees on a salary basis (rather than shifting these employees to hourly), consider whether the fixed salary for fluctuating hours (or flexible work week) overtime methodology may be available or whether you may want to implement a compensatory time policy.

The attorneys in the Education Law Group of Bose McKinney & Evans are available to answer your questions and provide guidance as needed to comply with this far-reaching new law.

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Obama Administration Issues Directive on Transgender Access to School Restrooms

A joint letter, commonly referred to as the “Dear Colleague” letter, from the U.S. Departments of Education and Justice was sent to schools today, Friday, May 13, 2016, with guidelines for every public school district in the country to allow transgender students to use the bathrooms that match their gender identity.  (A link to the letter is available here.)

The declaration describes what schools should do to ensure that none of their students are discriminated against. The goal of the directive is to ensure that “transgender students enjoy a supportive and nondiscriminatory school environment,” the Obama administration reported on Thursday.

The letter does not have the force of law, but it contains an implicit threat: Schools that do not comply with the Obama administration’s interpretation of the law could face lawsuits or a loss of federal aid. Justice and Education Department officials have repeatedly made clear that under their interpretation of Title IX, the federal anti-discrimination law in education, schools receiving federal funds may not discriminate based on a student’s sex, including a student’s transgender status.

Historically, courts have not adopted Office for Civil Rights (OCR) legal analysis on this issue. Indeed, many courts have held that sex discrimination protection under federal law does not automatically extend to transgender students and employees. However, a recent Fourth Circuit Court of Appeals decision has opened the door for reconsideration of the legal precedent, and court opinions in the lawsuits between North Carolina and the U.S. Department of Justice also may change the legal landscape.

For help in how your school can best address the guidelines, please contact your attorney or a member of the Bose McKinney & Evans Education Law Group.

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From No Child Left Behind to Every Child Achieves

What’s in a name?  Well, an awful lot.  No Child Left Behind (“NCLB”) was a continuation of the Johnson Administration’s focus on addressing poverty in America.  Those efforts continue as we consider unemployment, housing and infrastructure and the impact on rural and urban schools.  Originally passed during George W. Bush’s presidency, NCLB ushered in a new educational era, with a heightened focus on accountability and school improvement.  After almost 15 years of amendments and political wrangling, the U.S. Senate passed the Every Child Achieves Act (“ECAA”), which reauthorizes the Elementary and Secondary Education Act of 1965.  The stated purpose of ECAA is to “enable State and local communities to improve and support our Nation’s public schools and ensure that every child has an opportunity to achieve.”

The Senate’s version has taken major steps to return decision-making and autonomy to the entities that have the requisite knowledge and experience to guide the short and long-term strategy for improving schools and educational outcomes.  Additionally, the emphasis on testing seems to have been minimized creating an environment that embraces multiple tools to evaluate student achievement.  ECAA allows for a creative approach to experiment with assessment systems to truly capture what is or is not working in our schools.

The great work led by Senators Alexander (R – Tenn.) and Murray (D – Wash.) has the potential to impact students across the county but it will be interesting to see what language emerges from the House and how both Chambers reconcile the differing bills.

A few key components of the recently Senate-passed ECAA are as follows:

  • Prohibits the federal government from determining or approving state standards
  • Provides federal grants to support low-performing schools without the federal government dictating how districts or states approach improving struggling schools
  • Allows states, not the federal government, to define and prioritize academic standards
  • Includes significant changes relating to students with learning and attention disabilities

Though far from perfect, ECAA is a step in the right direction for all students.  Stay tuned as negotiations ensue to broker a compromised bill, likely focusing on accountability and the usual states versus fed discussions.

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New Proposed FMLA Regulations Extend Protections to Same-Sex Spouses

Recently the U.S. Department of Labor announced proposed regulations that would extend Family and Medical Leave Act (FMLA) protections to same-sex spouses. These proposed regulations are widely anticipated to become final after a brief public comment period.

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. These reasons include being entitled to take FMLA leave to care for a spouse who has a serious health condition. Currently, the regulations recognize same-sex spouses for purposes of FMLA leave but only if the employee resides in a state that recognizes same-sex marriage. The proposed changes would modify the current rule to extend protections to same-sex spouses regardless of where the employee resides so long as the marriage is recognized in at least one state. Furthermore, the FMLA protections would extend to children of an employee’s same-sex spouse as stepchildren and to same-sex spouses of an employee’s parent under the stepparent designation. Once the final rule is adopted, we will know the full extent of the changes and when those changes become effective, and we will notify you accordingly.

Practically speaking, the proposed FMLA regulations usher in big changes. The Education Group at Bose McKinney & Evans can help ensure your organization is informed and ready to manage any labor and employment issue that may arise in 2014, and we will keep you posted on any development regarding the proposed FMLA regulations.  Please contact Chuck Rubright or Jon Mayes with any questions or concerns.

 

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Considering Summer

As the school year comes to an end for many districts while others prepare for upcoming vacations, school leaders have the opportunity to reflect on successes and failures, how to improve as well as ways to redefine their respective missions.

Here are a few tips to maximize your “down time”:

1) Take time to visit your school community
– Walk the district
– Visit the local businesses
– Interact with neighborhood families

2) Provide administrators, teachers and staff with a suggested reading list
Choice Words by Peter Johnston
A Place Called School by John I. Goodlad
Think Like A Freak by Steven D. Levitt and Stephen J. Dubner
David and Goliath by Malcolm Gladwell

3) Collaborate with colleagues in similar positions from other districts to share best practices and invaluable insights

4) Consider new legislation and how it impacts your district

5) Regroup and reconnect with family and friends

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