Hot Topics in Total Rewards

By Lior Arussy

Jan 2, 2018

In business, there are two things you can't have enough of. The first one is obvious: revenues. Ask any business owner or salesperson, and they will share with you that their work seems like an endless pursuit of an ever-increasing revenue target. Just as they meet their target, a new, higher one is set.  The constant pursuit of new customers distracts companies from the other thing you can't have enough of in business.

The second thing you can't have enough of—yet it's the most neglected aspect of most businesses—is gratitude. For example, we can take existing customers for granted and think that once we've delivered a promised product or service, we're done. We don't stop to express our appreciation that they chose us over the competition. Instead, we try to sell them more. "Why not?" we ask ourselves. "They are already customers."

We sometimes have the same attitude about employees. Great performers are often given more tasks and assignments and very little gratitude for a job well done. It seems as if getting paid is the only confirmation.

There are several reasons for this failure to appreciate:

1. The focus on the new. We are always busy acquiring new customers or employees. They seem to be more interesting than the ones we already have.
   
2. Busyness and rushing.  It seems like we are always in a rush and have very little time for small things like saying "thank you."
   
3. Lack of prioritization.  We never made gratitude a priority. It's always an afterthought and the last item on our checklist. We hardly ever get to it.
   
4. Fear of creating new demands. "Well, if I share appreciation with my employees, they will ask for more money," a manager told me. The rationale he presented was that it was "better to keep them hungry and unfulfilled, and they will work harder."
   
5. Feeling uncomfortable.  Yes, some of us find expressing gratitude uncomfortable. Let's face it: If you have never received expressions of appreciation, you may not know how to give appreciation.
   

In a recent study of employee engagement at one of our clients, managers pushed back and claimed that it was a pointless study because all employees will ask for more money and more staff. In analyzing the employees' verbatim responses, we discovered an interesting finding. While 13 percent of employees did raise compensation and benefits issues, 36 percent simply asked for expressions of appreciation. During a focus group, one employee shared with me that he was the employee of the month in his company. As I congratulated him, he told me that he found out about it in the company's newsletter.

"Did you at least get a check?" I asked.

"Yes," he replied, "but I didn't get the handshake." It was clear that the handshake was much more meaningful to him than the check.

It is time to place gratitude on the same level as the other things in business we can't have enough of. It's time to appreciate the revenues we create through employees' efforts and customers' choices. No one wants to be taken for granted or feel "bought." People do business with people. People work for people. It is time to create appreciation-centric working relationships.

Start your day by thanking an employee for a job well done. Start your day with appreciation.

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Source: Society for Human Resource Management (SHRM)

https://www.shrm.org/ResourcesAndTools/hr-topics/employee-relations/Pages/Showing-Gratitude-to-Employees.aspx

A year-end look at developments affecting employee benefits

Dec 27, 2017

From the failed effort to repeal the Affordable Care Act (ACA) to concern that tax reform will alter key employee benefits, what happened in the nation's capital commanded much attention this year. But so, too, did the private sector, which provided benefits to meet a wider range of employee needs and helped employees rebalance the work/life equation in their favor.

Here's a look back at some key benefits trends highlighted by SHRM Online during 2017 that will have continuing impact in 2018.

Financial Wellness Programs Get Taken Seriously

In January 2017 we reported that "This year, employers are likely to focus on the financial well-being of workers in a way that extends beyond retirement, such as help with managing student loan debt, day-to-day budgeting and even physical and emotional well-being."

By June, that proved to be a true assessment when we reported that employers had sharply increased financial well-being benefits in 2017, and that nearly half (49 percent) of employers were offering some type of financial advice—such as providing online assessment and advice tools, group instruction and one-on-one advice with a financial counselor—up from 36 percent last year, according to the Society for Human Resource Management's 2017 Employee Benefits survey.

As the year wound down, we showed how financial wellness can boost productivity and highlighted the advantages of taking a team approach to promote financial wellbeing.

Gig Economy Is Transforming Benefits

Workers' ability to create a personalized benefit package—with greater flexibility to alter their selections outside of an annual open enrollment period—is coming, corporate benefit leaders predict, and the growing number of those working on a gig or on-demand basis is a big reason why.

More employers are using voluntary benefits to attract and keep part-time and gig workers, we reported. Although these contingent employees may not have the same access to a full suite of core benefits, voluntary benefits can allow them to take advantage of special pricing and underwriting concessions offered to other employees, and they can pay for these benefits on a payroll or direct-bill basis. Gig workers can also be awarded bonuses for hitting key milestonesand contributing to team goals.

"So many of our laws presuppose a traditional employer-employee relationship," said Labor Secretary Alexander Acosta. At some point the economy changes, he added, noting that "we need to ask if those laws are still right for the modern economy."

New Twists to Paid Leave

Trend-setting U.S. corporations have significantly increased their paid time off benefits for new parents—or even grandparents—following the arrival of a new child, which was just the latest evidence that paid family leave is becoming a new standard for employers. We also looked at the repercussions of giving unequal parental leave for new dads, and found signs that caregiving benefits are growing in importance as employers see opportunities to help workers take care of others.

Learning to Live with ACA Compliance

Like many others, we assumed that the new Trump administration and GOP-led Congress would make good on their pledge to repeal and replace the ACA. That seemed to be likely when, in May, the U.S. House passed a bill that would have done so. But come September, Senate GOP leaders announced they lacked sufficient votes to pass their own measure, keeping in place the ACA's employer coverage and reporting obligations for the foreseeable future. We reminded employers subject to the ACA to prepare for early 2018 reporting on health coverage, keeping in mind that not every aspect of Form 1095-C can be outsourced.

[SHRM members-only toolkit: Complying with and Leveraging the Affordable Care Act]

Coping with Rising Health Care Costs

At the start of the year, we called attention to how rising deductibles were blurring the linebetween traditional and high-deductible health plans. In the fall, we noted that health premiums were expected to rise 5.5 percent next year, which was driving cost management steps such as providing employees with incentives to spend wisely through health savings accounts, and prodding employers to manage surging specialty pharmacy costs. As the year ended, we noted that the cost-shifting trend was continuing, with workers paying more of rising health care costs.

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Source: Society for Human Resource Management (SHRM)

https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/5-big-benefits-trends.aspx

Employers should consider convening their compensation committees—possibly during this holiday season

By Stephen Miller, CEBS Dec 21, 2017

The passage of the Tax Cuts and Jobs Act, which limits the tax deductions that businesses can claim for certain employee benefits, is likely to cause some employers to revisit their executive compensation programs.

The legislation changes the taxation of executive compensation in several ways. Most significantly, it:

• Amends Internal Revenue Code Section 162(m)—which prohibits publicly held companies from deducting more than $1 million per year in compensation paid to senior executive officers—to eliminate the exemption for commission- and performance-based pay. The legislation also expands the scope of covered individuals to include CFOs, along with an organization's CEO and three highest-paid employees, beginning in 2018.
  

A transition rule applies to remuneration provided under a written binding contract that was in effect on Nov. 2, 2017, and was not modified in any material respect after that date.

"The exemption for performance-based compensation turned out to be a far bigger loophole than had been imagined" when section 162(m) was enacted in 1993, explained John Lowell, a partner with October Three Consulting in Atlanta. "Many companies saw this as a license to offer base pay of $1 million to their CEO while offering incentive pay—some only very loosely incentive-based—without limits while taking current deductions."

Removal of the exclusion for performance-based pay "is by no means the end of the need to align executive pay and performance," said Deb Lifshey, managing director of pay consultancy Pearl Meyer & Partners in New York City. "Clearly, shareholders and proxy advisors will continue to scrutinize programs for pay and performance alignment."

• Creates a 20 percent excise tax for nonprofits—including 501(c)(3) and 501(c)(6) organizations—on the compensation of the five highest-paid employees who earn more than $1 million. The compensation is treated as paid when there is no substantial risk of forfeiture.
  

Other changes that will affect executive compensation include the reduction of the top income tax bracket to 37 percent from 39.6 percent, leaving top earners with additional net income.

Steps to Consider

Compensation advisers are recommending that employers:

•   Review compensation arrangements.
  Affected employers should "be prepared to convene their compensation committees—possibly during this holiday season—to make important decisions on compensation arrangements for their top officers," advised Melissa Ostrower, a principal with Jackson Lewis in New York City, and Alec Nealon, of counsel at the firm. 

In particular, "tax-exempt entities should review their existing executive compensation arrangements now and consider whether any changes should be made," they recommended. "Tax-exempt entities should consider including protective language in any new executive compensation arrangements that would allow them to modify or reduce compensation to the extent needed to avoid the new excise taxes."

• Consider accelerating bonus deductions.
  The final bill provides for a 21 percent corporate tax rate beginning in 2018, down from the current 35 percent rate. The bill would not change the treatment of bonus deductions, "but lower corporate rates may encourage companies to accelerate bonus deductions into 2017," said Carol Silverman, a principal with HR consultancy Mercer in New York City.
  

Bonuses are generally deducted in the year paid and most employers pay bonuses in the year after the employee performs the services being rewarded. However, except for companies using accrual-basis accounting, "businesses can deduct amounts for bonuses earned in the performance year if the bonus is paid within 2½ months of year-end, as long as performance-related goals are met before year-end and the amount can be determined with reasonable accuracy," Silverman noted.

"Deductions in 2017 are worth more than they are in 2018," said Lifshey. "Generally, bonus payments made by March 15, 2018, are deductible in 2017 and would not need to be accelerated to take advantage of 2017 deductions."

"Companies are also considering accelerating vesting or payment of equity awards into 2017," Lifshey added.

If either cash or equity awards are accelerated to 2017, "companies must make sure all section 162(m) requirements are met," Lifshey advised. These requirements include certification of performance during the period by the compensation committee, which also may require a special meeting.

Accelerated payments and deductions should be consistent with company policies, and may be limited by accounting and other tax rules under section 409A, Lifshey said.

Altered Tax Rates and Withholding

Income tax bracket adjustments for tax year 2018 were issued on Oct. 19 by the IRS in Revenue Procedure 2017-58. However, the Tax Cuts and Jobs Act significantly alters tax brackets and income ranges starting Jan. 1, 2018.

Under the new tax legislation, the number of tax brackets remains at seven but the tax rates are lowered and income ranges are different.

• Current tax rates: 10 percent, 15 percent, 25 percent, 28 percent, 33 percent, 35 percent and 39.6 percent.
  

• New tax rates: 10 percent, 12 percent, 22 percent, 24 percent, 32 percent, 35 percent and 37 percent.
  

View a table showing the new rates and income ranges.

Tax Withholding for 2018 Is Changing The IRS said it expects to issue initial guidance on new automatic withholding rates for payroll systems in January, "which would allow taxpayers to begin seeing the benefits of the change as early as February." Employees also may choose to submit a revised Form W-4 to their payroll administrators, as noted below. "We are taking the initial steps to prepare guidance on withholding for 2018," the IRS said in a statement shortly before the congressional vote. The IRS also said it "will be working closely with the nation's payroll and tax professional community during this process." HR compensation and payroll managers should consult with their payroll vendors to ensure that their systems are appropriately adjusted in light of the forthcoming IRS guidance.

The new tax rates and related salary ranges will affect employees' tax withholding decisions. The IRS encourages wage earners to consider a tax withholding checkup. By adjusting Form W-4, Employee's Withholding Allowance Certificate, taxpayers can ensure that the right amount is being withheld from their paychecks so that they don't overpay on taxes during the year, to be refunded after filing their tax returns, or pay too little and face an unexpected tax bill.

The level of income that is subject to a higher tax bracket also can influence how much salary to defer into a traditional 401(k) plan, which reduces taxable income for a given year by the amount contributed, or whether to participate in a nonqualified deferred income plan, if that option is available through the employer.

The Tax Cuts and Jobs Act also states that among other income tax adjustments for 2018:

• The deduction for personal exemptions, which had been $4,050 for 2017, is suspendeduntil taxable years after Dec. 31, 2025.
  

• The standard deduction for single taxpayers and married taxpayers filing separately rises to $12,000 from $6,350.
  

• The standard deduction for married taxpayers filing jointly returns rises to $24,000 from $12,700.
  

• The standard deduction for heads of household rises to $18,000 from $9,350.

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Source: Society for Human Resource Management (SHRM)

https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/tax-bill-alters-executive-pay-and-bonus-decisions.aspx

Back-of-the-house workers, such as cooks, would be able to share in tip pools

By Lisa Nagele-Piazza, SHRM-SCP, J.D. Dec 5, 2017

The U.S Department of Labor (DOL) announced on Dec. 4 a notice of proposed rulemaking that would allow more hospitality and restaurant workers—including cooks and dishwashers—to share in gratuities under the Fair Labor Standards Act (FLSA).

"The proposal would help decrease wage disparities between tipped and nontipped workers," according to the announcement.

Currently, restaurateurs can require "front-of-the-house" staff who customarily receive tips—such as servers, bartenders and bussers—to pool their tips. But whether those gratuities can be shared with "back-of-the-house" staff—such as cooks and dishwashers—has been the source of heated litigation.

The proposed rule would make it clear that tipped workers can share tips with employees who don't traditionally receive gratuities.

"Restaurants and other food service providers should welcome these proposed changes," said Kathleen Anderson, an attorney with Barnes & Thornburg in Fort Wayne, Ind., and Columbus, Ohio. "Think about it. The restaurant experience is created by the combined efforts of the front and back of the house. Tip sharing allows those in the back of the house to be rewarded for good service."

The DOL hasn't issued a new rule yet, noted Eli Freedberg, an attorney with Littler in New York City. The department is first soliciting comments from interested parties about potentially changing its stance on tip sharing. Employers and other affected groups should determine whether they want their voices heard about how the proposed rule would affect their workplace.

The notice of proposed rulemaking will be published Dec. 5 in the Federal Register and will be available for public comment for 30 days.

Although the rule could be modified or withdrawn during the public comment period, it is likely that the rule will be adopted sometime in early 2018, said Aaron Warshaw, an attorney with Ogletree Deakins in New York City.

"I believe this proposed rule will become a final rule," noted Jeffrey Brecher, an attorney with Jackson Lewis in Long Island, N.Y. "There is a relatively short comment period, so my guess is that a final rule will be issued quickly."

The new rule wouldn't apply to employers who take a "tip credit" or in states that have laws prohibiting tip-pool arrangements that include back-of-the-house workers.

Employer Tip Credit

Under the FLSA, employers may pay tipped employees a cash wage of as little as $2.13 per hour—which is less than the current federal $7.25 minimum wage—as long as workers make up the $5.12 difference in gratuities.

Employers may take this so-called tip credit as long as certain conditions are met. For one thing, the employer can't keep any of the tips. All gratuities must be retained by the employee unless there is a valid pool that is limited to tipped workers.

Restaurant servers and other employees who customarily receive more than $30 per month in gratuities are considered "tipped employees" under the FLSA.

But what rules apply if the employer doesn't take the tip credit and pays the full minimum wage instead? Can an employer then require tipped workers to share their gratuities with back-of-the-house staff? The answer isn't clear.

In Cumbie v. Woody Woo Inc. (596 F.3d 577 (2010)), the 9th U.S. Circuit Court of Appeals upheld an Oregon restaurant's tip pool that included kitchen workers. The court reasoned that everyone who participated was paid at least the minimum wage. 

In 2011, however, the DOL adopted regulations that made pooling tips with back-of-the-house employees unlawful, regardless of whether the employer took a tip credit or paid workers the standard minimum wage.

Since then, federal courts have disagreed as to whether the DOL's regulations are valid. Some federal appellate courts have said the DOL exceeded its authority in the 2011 regulations. The 9th Circuit, however, changed its view based on the DOL regulations and held in 2016 that back-of-the-house workers can't share in tip pools—even if all participants earn the full minimum wage.

Another point of contention is whether hostesses and certain other front-of-the-house workers are considered employees who "customarily receive tips" and can share in the tip pool.

The DOL's new proposed rule would undo the 2011 rule and would permit tip pools to once again be shared with employees who don't customarily receive tips—provided that employers pay at least minimum wage and do not take a tip credit, Warshaw said.

The U.S. Supreme Court has been asked to weigh in on this issue, but the new rule would presumably moot the case before it reaches the high court, he added. The rule would obviate the circuit split over whether the DOL exceeded its authority.

Effect on Workplace

It's important to note that many states have their own laws about tip pooling, Freedberg said. So even if the proposed regulation goes through, multistate employers and businesses in California, New York and other states with tip laws will have to be aware of any conflict. "The more employee-friendly law tends to prevail," Freedberg added.

The DOL's proposed rule would be good news for the employers who can take advantage of it, Brecher said. Many back-of-the-house workers—like cooks—directly affect the customer experience. The proposed rule could create wage parity, particularly in high-end restaurants where servers receive large tips that aren't currently shared with customer-focused nontipped workers, he added. 

Employee advocates disagree. "Tips belong to the workers who have earned them—period," said Christine Owens, executive director at the National Employment Law Project in Washington, D.C. "If companies have trouble retaining nontipped workers because their pay is so low, the solution is for the companies to raise the wages of those workers."

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Source: Society for Human Resource Management (SHRM) 

https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/dol-announces-proposed-rule-to-expand-flsa-tip-sharing.aspx

Would 50 benefit plan options be too many?

By Stephen Miller, CEBS Dec 7, 2017

Workers' ability to create a personalized benefit package—with greater flexibility to alter their selections outside of an annual open enrollment period—is coming, corporate benefit leaders predict.

They shared their forecasts during a panel discussion at the American Benefits Council's 50th Anniversary Symposium, held recently in Washington, D.C.

"To enhance shareholder value, employers need to hire the best people for every job," said Kevin Avery, manager of federal government affairs for energy firm ConocoPhillips. "To hire the best people possible, we have to meet their needs" for paid-leave policies, flexible scheduling and work/life balance, he noted. That can range from providing student loan assistance to helping employees care for aging parents.

"It's becoming more important for employers to fill gaps left by common or mandatory benefits such as time off under the Family and Medical Leave Act (FMLA)," he noted. "Our employees are turning to us because they need paid time off—how many of you can go 12 weeks without being paid?" he asked, referring to the amount of unpaid leave provided under the FMLA.

Rise of the Gig Economy

As the definition of an employee changes, so too will workers' benefit needs, said Jennifer Graham-Johnson, SHRM-SCP, chief HR officer at WestRock Co., a manufacturer of paper and packaging products.

"As the gig economy expands, people will be dropping in and doing work as a contractor and then moving on," she said. For many of these workers, forgoing full-time employment will be "a choice made for flexibility and freedom." Also expect shorter tenures among full-time employees, she advised, saying, "It's not a failure if someone leaves after three to five years to seek a new experience." However, "you still, need to train these employees to take full advantage of their contributions while they're with you."

Employees will increasingly expect to be able to customize their work schedules, pay periods and benefit packages, Graham-Johnson said. "People want more 'life' in the work-life equation," she noted.

"Employers should empower all employees to be creative," said Fred Thiele, general manager of global benefits at Microsoft. "We're looking at how over the next three to five years we can adapt our compensation and benefit plans to meet the needs of those who choose to participate in the gig economy, so the company can continue to thrive in the future."

Thiele advised HR leaders to "seek to be an employer of choice and 'gig' of choice," by determining which jobs can be parsed out to gig workers, such as customer support, and offering full-time employees gig opportunities to do different jobs within the company.

Customized Options

Tom Sondergeld, vice president for global benefits and mobility at Walgreens Boots Alliance, explained how Walgreens was an early adopter, in the fall of 2013, of the private exchange model for providing health and other employee benefits.

"Employers can no longer just offer one or two health plan options," he said, noting that Walgreens employees can choose from around 50 health and voluntary benefit options on the private exchange platform.

"It takes them on average about 45 minutes to choose benefits, which we don't think is too much once a year for so important a decision," he said.

Thiele sounded a cautious note about giving employees too much choice, noting that Microsoft has narrowed the available benefit options to those it believes are the best fit for its workforce, "tailored to our people and their unique needs." Employees "want to be able to choose benefits in five minutes," he said.

Sondergeld responded that if employees are able to choose among 50 TV brands when they go into a store or shop online, "they can be consumers when it comes to making choices about benefit coverage when given benefit comparison and self-assessment tools."

Looking Ahead

"Employees tell us they want even more benefit choices, and greater flexibility around benefit selection, not just at fall open enrollment," Sondergeld said. If an employee decided in February to try to have a baby, "they want to be able to change health coverage and paid time off plans. That flexibility is the next avenue for employers to go down," he noted.

But to have medical benefits flexible enough to allow employees to buy up and buy down throughout the year, "tax law would need to change, as would Department of Labor rules," he said. "And insurance carriers would need to adopt new approaches to working with employers."

He added, "This would require radically changing the way we do traditional benefits, because traditional benefits won't hold up in the new gig economy."

When it comes to meeting the needs of gig workers, "we're stuck with many of the same old rules" that prevent employers from providing more-flexible benefit options, Avery said.

Employers will still need to provide the basics—health care, retirement, family leave—"but employees are increasingly looking for more, such as paid time off to go do volunteer activities, or the ability to swap shifts," said Graham-Johnson. "They're also looking for employers to provide continuous training, to invest in their ability to do their jobs better."

Employees "are looking for employers to differentiate themselves," she said.

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Source: Society for Human Resource Management (SHRM)

https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/benefit-leaders-foresee-greater-choices.aspx

Lifestyle-management programs can help people with, or at risk of developing, Type 2 diabetes

By Stephen Miller, CEBS Nov 14, 2017

Type 2 diabetes, characterized by high blood sugar and insulin resistance, and linked to unhealthy diets and a lack of regular exercise, is increasing among U.S. adults. That translates into high costs for employers—more than $20 billion annually due to unplanned, missed days of work.

The Cost of Diabetes in the U.S.: Economic and Well-Being Impact, a new report by Gallup researchers and Sharecare, a health and wellness engagement firm, was released to coincide with World Diabetes Day on Nov. 14. 

November is also recognized by the Centers for Disease Control and Prevention and others as National Diabetes Month, a time for promoting awareness about managing diabetes.

Being obese (severely overweight) is a leading risk factor for developing diabetes, the report noted. People with diabetes have much higher rates of other chronic disease such as high blood pressure, high cholesterol, heart attack and depression, and they are less likely to get regular exercise or engage in other healthy behaviors.

The findings are based on a subset of 354,473 telephone interviews with U.S. adults across all 50 states and the District of Columbia, conducted from January 2015 through December 2016 as part of the Gallup-Sharecare Well-Being Index. Diabetes cost analysis findings were drawn from research by the American Diabetes Association.

"While most clinicians agree that managing diabetes improves health and reduces medical costs, the benefit to employers also extends to a more productive workforce," said Sharecare Vice President Sheila Holcomb. "An opportunity exists for employers to partner with the medical community, specifically certified diabetes educators at local and regional hospitals, to offer diabetes education and training to their employees."

Helping employees to keep their blood glucose within an appropriate range can have "tangible and proven value for both the individual and the company's bottom line," she said.

Weight Management and Exercise

For World Diabetes Day, the personal finance website WalletHub produced a Diabetes Facts & Statistics infographic, drawing on data from the American Diabetes Association, the National Institutes of Health, the Centers for Disease Control and Prevention, and others. Among the numbers:

• 90 percent of Americans with Type 2 diabetes are overweight or obese.
  

• There is a 26 percent decrease in the risk of diabetes among those who get 2.5 hours of exercise each week.
  

"As the prevalence of diabetes rises, its impact strikes at the vitality of everyday life," said Steven Edelman, founder and director of the nonprofit organization Taking Control of Your Diabetes. Employers in collaboration with health care providers can make available "lifestyle management programs and education specifically targeted at [those with] diabetes and prediabetes."

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Source: Society for Human Resource Management (SHRM) 

https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/rising-diabetes-rates-costly-for-employers.aspx

Employers have just 30 days to respond to penalty assessments

By Stephen Miller, CEBS Nov 15, 2017

The IRS plans to begin notifying employers in "late 2017" of their potential liability for failing to provide health coverage compliant with the Affordable Care Act (ACA). The agency recently posted online a new set of frequently asked questions (FAQs) that explains the notification process and how employers can appeal the penalty determination.

On Nov. 2, the IRS issued Q&As 55-58, informing employers that by year's end the agency will begin notifying "applicable large employers" (ALEs) of their potential liability for an employer shared responsibility payment, if any, in connection with the 2015 calendar year. The determination will be based on information that employers reported to the IRS on Forms 1094-C and 1095-C and the individual tax return filed by the ALE's employees. In general, an ALE would be subject to a penalty fee if, for at least one month in the year, one or more of its full-time workers received a premium tax credit through the ACA's Health Insurance Marketplace because the ALE failed to provide ACA-compliant health coverage.

The IRS also posted an explanation of Letter 226J and described how ALEs should respond to this letter.

"Any ALE that receives a Letter 226J will be provided with 30 days to respond before a demand for payment is made by the IRS," said Ryan Moulder, a Los Angeles-based partner at Health Care Attorneys PC and general counsel at Accord Systems LLC, an ACA compliance software firm.

Penalty Refresher

The ACA added employer shared responsibility provisions under Section 4980H of the tax code. ALEs—employers with at least 50 full-time equivalent employees—must offer "minimum essential coverage" that is "affordable" and that provides "minimum value" to their full-time employees or potentially make an employer shared responsibility payment to the IRS.

However, "2015 was a phase-in year and an applicable large employer [was defined as having] 100 or more full-time employees," rather than 50 or more, said Craig Hasday, president of Frenkel Benefits, an employee benefit brokerage and benefit administration firm in New York City. For 2015, ALEs also were "required to offer minimum essential coverage which also met the minimum value standard to at least 70 percent of full-time employees and their eligible dependents," whereas beginning in 2016 the statutory threshold—at least 95 percent of full-time employees—took effect.

For plan year 2015, ALEs could face a $2,000 penalty for every full-time employee in the event there was no valid offer of coverage and a $3,000 penalty if the offer was not affordable. These penalties are indexed for inflation and rose slightly for each subsequent plan year (2017 and 2018 penalty amounts are described here).

Enforcement Guidance

The new guidance explains that:

• The IRS will notify an employer of potential liability for an employer shared responsibility payment via Letter 226J. The letter will list, by month, the employees who received a premium tax credit and provide the proposed penalty. It will also provide the employer shared responsibility response form (Form 14764) and the name and information for a specific IRS employee to contact with any questions.
  

• ALEs will have just 30 days from when the Letter 226J was dated to respond before the IRS demands payment. The ALE's response can either agree with the proposed assessment or disagree in whole or in part.
  

• The IRS will acknowledge the ALE's response with Letter 227, which describes further actions the employer may need to take.
  

• If the employer disagrees with the proposed or revised assessment in Letter 227, the employer can request a pre-assessment conference with the IRS Office of Appeals. Conferences will generally take place 30 days from the date of Letter 227.

Rapid Response Required

If an ALE does not make a timely response to the Letter 226J, "the IRS will demand payment in the proposed amount through notice CP 220J. Assessments are due only after the IRS has provided notice and demand for payment," noted Julia Zuckerman, J.D., a director at Conduent HR Services in Washington, D.C., and Richard Stover, an actuary and principal with the firm, in a recent blog post.

Employers "should also ensure that processes are in place to make these payments, as necessary. Even employers who are not expecting any assessments will need to prepare to respond to the IRS within the limited timeframe to appeal any incorrect assessments," they advised.

"Regardless of the reason an ALE member receives a Letter 226J, a timely, accurate response is necessary," Moulder emphasized. "It would be prudent for any ALE responding to the Letter 226J from the IRS to consult with an attorney who is familiar with the Forms 1094-C and 1095-C as well as other pertinent Affordable Care Act provisions."

"Subtract mailing time and internal routing time and you may have just two or three weeks to deliver to IRS your well-considered, written, well-documented, objection to a substantial employer mandate tax assessment," said R. Pepper Crutcher Jr., a partner in Balch & Bingham's Jackson, Miss., law office. "If you lack ready access to well-organized data about your 2015 group health plan enrollment, employee affordability, eligibility and IRS reporting of your coverage offers—including 2015 Forms 1094-C and 1095-C—you may find this a daunting task. If that data is hosted by a vendor, you should contact that vendor and verify access promptly."

"In an organization of any size, it might take a week or more for Letter 226J to reach the right department or person," said Alden Bianchi, a benefits attorney with Mintz Levin in Boston. "While the Q&A nowhere mentions extensions of time, one would hope that the IRS will be more flexible on this score."

Due to confusion surrounding the regulations and the complexity of the required forms, "the appeal process is going to be a mess," said Hasday. "No doubt, there are going to be a lot of angry and confused employers. Lawyers, accountants and insurance brokers are going to get very busy sorting all this out."

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Source: Society for Human Resource Management (SHRM) 

https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/irs-prepares-aca-penalty-letters.aspx

Employers’ contributions to plan premiums nearly the same year to year

By Stephen Miller, CEBS Nov 3, 2017

At the end of the year, health plan data-crunchers forecast health premium increases for the coming year and look back to verify how much premiums actually rose in the year that's coming to a close.

Premium renewal rates for employer-sponsored health plans rose an average of 6.6 percent this year—a significant increase from the five-year average increase of 5.6 percent—findings from the 2017 United Benefit Advisors (UBA) Health Plan Survey showed.

Last year, some forecasts for 2017 premium rates had predicted an increase closer to 6 percent.

The annual survey by UBA, a network of health benefit brokers and consultants, this year looked at health plans sponsored by 11,221 employers of all sizes throughout the U.S. UBA's findings tend to show larger cost increases than surveys that focus on large employers.

This year UBA found that:

• Employee contributions to plan premiums are up, while employer contributions toward total costs remained nearly the same.
  

• Co-pays—flat-dollar amounts often around $20-$50 that plan enrollees pay for health services after satisfying any deductible—are holding steady, but out-of-network deductibles and out-of-pocket maximums are rising.
  

• Pharmacy benefits have even more tiers and co-insurance (the percentage of costs that employees pay after satisfying the deductible), shifting more prescription drug costs to employees.
  

• Self-funding, particularly among small groups, is on the rise.
  

Details on these trends are presented below.

Premium Cost-Shifting

The survey showed that:

• Average employee premiums for all employer-sponsored plans rose to $532 in 2017 from $509 in 2016 for single coverage and to $1,272 from $1,236 for family coverage (a 4.5 percent and 3 percent increase, respectively).
  

• Average annual total costs per employee increased to $9,935 from $9,727. However, the employee share of total costs rose 5 percent to $3,550 from $3,378, while the employer's share rose less than 1 percent, to $6,401 from $6,350.
  

“Premiums have been holding relatively steady the last few years. And while this year’s increases are not astronomical, their departure from the trend does warrant attention," said UBA President Peter Weber.

Prescription Drug Plans

Employers have reduced prescription drug coverage to defray increasing costs, the survey found.

For a second year, there are more prescription drug plans with four or more tiers (with higher tiers that charge employees a larger share of the cost for expensive "specialty" pharmaceuticals) than there are plans with one to three tiers (traditionally for low-cost generic drugs, formulary brand drugs and nonformulary brand drugs).

Almost three-quarters (72.6 percent) of prescription drug plans have four or more tiers, while 27.4 percent have three or fewer tiers, the survey found. Six-tier drug plans now account for 32 percent of all plans, charging employees the most for drugs such as biologics, which are produced using recombinant DNA technology.

Out-of-Pocket Costs

Out-of-network median deductibles for singles saw a 13 percent increase in 2016 and a 17.6 percent increase in 2017, to $4,000 from $3,400, the survey found.

Both singles and families are facing continued increases in median in-network out-of-pocket maximums (up by $560 and $1,000, respectively, to $5,000 and $10,000).

Self-Funding

The number of employers using self-funding grew 48 percent for employers with 25 to 49 employees in 2017 (5.8 percent of plans), and 13.4 percent for employers with 50 to 99 employees (9.3 percent of plans).

Almost two-thirds (60.9 percent) of all large-employer (1,000+ employees) plans are self-funded.

"Self-funding has always been an attractive option for large groups, but we see self-funding becoming increasingly desirable to all employers as a way to avoid various cost and compliance aspects of health care reform," Weber said.

"For small employers with healthy populations, self-funding may be particularly attractive since fully insured community-rated plans under the Affordable Care Act don't give them any credit for a healthy group," he observed.

Strategizing to Meet Business Needs

"U.S. employers have had to wrestle with how best to plan strategically and innovatively around managing health care costs," said Hope Kragh, vice president of client services at Collective Health, a San Francisco-based health benefits administration firm.

"Rising health care costs not only impact the health and productivity of your employees, but they also weigh heavily on the health of your business," she noted. That, in turn has led CEOs and the C-suite to become more involved in health-cost management decisions.

Employers face health cost increases that "are three times the rate of increase for the consumer price index, and two times the rate of wage increases," Kragh pointed out. Many businesses are investing in health care more than they may be in research or other business-boosting expenses.

HR should form alliances throughout the organization when creating a strategy to deal with health care costs, said Brian Marcotte, president and CEO of the Washington, D.C.-based National Business Group on Health, representing large employers.

"For most organizations today, HR has to be joined at the hip with finance," he noted. When meeting with the CEO and leadership team, including the CFO and general counsel (and, in corporations, with the head of procurement), "you want to go in and be aligned with all of the stakeholders. Having already brought them up to speed on what you're presenting to the CEO is critically important to getting out of that room with a green light on your strategy."

He advised showing business leaders how to achieve the cost trend number that the CEO says is the bottom line given the level of business growth (or lack of growth in a down cycle, when the corporate budget has to be flat or down).

"If the [health care cost increase] trend is 6 percent and your CEO doesn't want [the company to absorb] any more than 3 percent, you've got to meet that expectation," Marcotte said. "Show them all the things you're going to do to achieve that number, presented as a business plan" aligned with the organization's priorities.

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Source: Society for Human Resource Management (SHRM)

https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/workers-bear-rising-health-costs.aspx

By Roy Maurer

Oct 23, 2017

California employers will need to modify their job applications and update their training for those involved in the hiring process after California Gov. Jerry Brown signed two new laws, both effective Jan. 1.

Statewide Ban-the-Box Law Signed

California became the 10th state to require private-sector employers to "ban the box" on employment applications asking about applicants' criminal conviction histories when Brown signed A.B. 1008 on Oct. 14.

The law prohibits most public and private employers with five or more employees from asking applicants about criminal conviction histories until after a conditional offer of employment has been made. Positions required by law to undergo employment screening are exempted.

"It is not a surprise that California enacted this law given how many other states and cities have similar laws, including since several cities in California such as San Francisco and Los Angeles have recently enacted their own versions," said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego and the government affairs director for the California State Council of SHRM.

Kalt added that while well-intentioned, the new law's requirements may delay hiring decisions and increase HR's administrative burden. "The law may create unintended consequences such as employers avoiding conviction history checks, which may increase the likelihood of hiring someone who presents a danger, or encourage some employers to simply avoid making initial offers to people they improperly suspect may have a conviction history," he said. 

Assemblyman Kevin McCarty, D-Sacramento, who sponsored the legislation, said that the intent of the law is to give applicants with a criminal record the opportunity to be judged on their qualifications and not their criminal histories. "After a conditional offer has been made there is nothing preventing an employer from conducting a background check," he said.

Roughly 7 million Californians, or nearly one in three adults in the state, have an arrest or conviction record that can undermine their efforts to obtain employment, according to McCarty's office.

Nationwide, 29 states and over 150 cities and counties have adopted ban-the-box laws, and in 2013, California passed a similar law that applied to state agencies, cities and counties. Ten states and 15 major cities have adopted ban-the-box hiring laws that cover both public- and private-sector employers.

"For many California employers, this will necessitate revising initial employment applications to remove boxes or questions that ask applicants to disclose criminal convictions," said Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento. "If the employer has a supplemental application or form that is only provided to applicants after a conditional offer of employment has been made, that document may continue to ask about conviction history."

If an employer wants to deny an applicant a position based on reviewing conviction history, it must make an individualized assessment and provide the applicant with an opportunity to respond before making a final decision, Ebbink said.

The individualized assessment must consider the nature and gravity of the criminal offense, the time that has passed since the offense and the completion of the sentence, and the nature of the job sought, added Jennifer Mora, senior counsel in the labor and employment department of Seyfarth Shaw's Los Angeles office. "The employer may but [is not required to] document the individualized assessment."

Mora explained that if the individualized assessment leads to a decision that the applicant's conviction history is disqualifying, then the employer must provide a written notice which goes beyond what the federal Fair Credit Reporting Act requires, including:

• The conviction at issue.
  
• A copy of the conviction history report.
  
• The applicant's right to respond to the notice before the employer's decision becomes final.
  
• A deadline for that response.
  
• An explanation that the response may include evidence challenging the accuracy of the conviction history and evidence of rehabilitation or mitigating circumstances.
  

The employer must consider any information the applicant submits disputing the accuracy of the conviction history before making a final decision, Mora said.

She noted that if an employer then makes a final decision to deny employment based on conviction history, a second written notification must be provided to the applicant, which must include:

• The final denial.
  
• Notice of any existing procedure to challenge the decision or request reconsideration, and the right to file a complaint with the California Department of Fair Employment and Housing.
  

Kalt added that the new law does not preempt conflicting municipal ordinances such as those in Los Angeles and San Francisco, adding to potential confusion, and that the law does not provide any protections against negligent hiring lawsuits. 

"Employers may find themselves in the uncomfortable position of choosing between not hiring an applicant with a conviction history and risking a lawsuit for employment discrimination or hiring the individual and risking a negligent hiring or retention lawsuit if there is a resulting incident or problem," Ebbink said.

There is also concern about how the law would relate to or overlap with the new California Fair Employment and Housing Council regulations on criminal history and adverse impact, and whether employers will be confused about their obligations between the two.

Kalt provided the following tips for HR professionals doing business in California:

• Update applications to remove inquiries related to conviction history.
  
• Train hiring managers and supervisors, as well as any third-party recruiters, to avoid inquiring about an applicant's conviction history until after a conditional offer of employment has been extended.
  
• Train hiring managers and any third-party investigators on the types of information that may be obtained during a background search for conviction history information.
  
• Train those involved in the hiring decision about the factors that must be considered when determining whether prior convictions disqualify an applicant.
  
• Develop protocols and notices for the process where the employer notifies applicants of potentially disqualifying convictions and provides an opportunity to respond.
  
• Review local ordinances for additional requirements or limitations regarding conviction history information.
  

Questions About Past Salaries Are Soon Off-Limits

A.B. 168 restricts employers' use of salary history information, which includes compensation and benefits. Signed by Gov. Brown on Oct. 13, the law bars employers from requesting the pay history of job applicants. Employers may consider salary history information that an applicant voluntarily offers, however. Employers are also required to give applicants the pay scale for a position upon request.

California joins a growing number of states and cities preventing employers from asking about applicants' past salaries. San Francisco recently passed an ordinance that will go into effect on July 1, 2018.

Supporters of the law say that basing salaries on prior compensation allows wage discrimination to follow people from job to job. "However, employers have generally argued that they utilize salary history information for legitimate, nondiscriminatory reasons, such as matching their job offers to current market rates," Ebbink said. "Employers have argued that prohibiting them from reviewing salary history information will result in wasted time for both parties where the employee's expectations or requirements for compensation far exceed what the employer is able to offer for the position."

According to federal data from 2015, the median wages for women in California are 84.8 percent of those for men.

Prior to Jan. 1, HR should carefully review the company's employment applications and hiring processes to ensure that they do not inquire into, or rely upon, salary history information, Ebbink said.

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Source: The Society for Human Resource Management (SHRM)

https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/california-bans-the-box-prohibits-salary-history-queries.aspx

'Catch-up' contribution for those 50+ stays at $6,000, while contribution limit from all sources hits $55,000

By Stephen Miller, CEBS Oct 20, 2017

Employee 401(k) contributions for 2018 will top off at $18,500—a $500 increase from 2017, following two years without a boost—while the "all sources" maximum contribution (employer and employee combined) rises to $55,000, up $1,000, the IRS announced on Oct. 19.

Plan participants who contribute to the limit next year will be able to receive up to $36,500 from match and profit-sharing contributions ($55,000 minus $18,500).

For participants ages 50 and over, the additional "catch-up" contribution limit will stay at $6,000.

HR and payroll managers should plan to adjust their systems for the new year and to inform employees about the new limits in year-end open enrollment materials.

The employee 401(k) contribution increase "is the first since plan year 2015, and reflects a consumer price index increase of 1.97 percent between the third quarters of 2016 and 2017, the largest increase in the past six years," said Brian Donohue, a partner in the Chicago office of October Three Consulting, a retirement plan advisory firm. "Inflation has been historically low during the entire current economic recovery," he noted.

Due to a mild uptick in inflation, rounding rules required the 2018 contribution limits to be increased, while other plan limits that are tied to higher inflation targets remain unchanged. "Although inflation continues to be low, it was enough to finally push up the 401(k) and 403(b) contribution limit in 2018 by $500," said Harry Sit, CEBS, who edits The Financial Buff blog.

2018 Defined Contribution Plan Limits

In Notice 2017-64, the IRS highlighted the following adjustments taking effect on Jan. 1, 2018, for 401(k), 403(b) and most 457 plans:

HR professionals should convey to employees their plan contribution limits for next year. Not all plan participants will be able to fund their 401(k) accounts up to the maximum, of course, but the contribution cap is a goal they should keep in mind and may encourage those who can defer extra dollars for retirement savings to do so.

Conversely, high-earners may want to increase their contributions a bit to reach the full annual limit. They also may want to ensure that they don't hit the annual limit prior to year-end, which could mean losing out on employer matching contributions tied to paycheck deferrals, unless the plan sponsor has agreed to "make whole" with the full year's match those participants who max out prior to their final paycheck.

2018 Income Tax Brackets and Retirement Plans The IRS issued income tax bracket adjustments for tax year 2018 on Oct. 19.  The level of income that is subject to a higher tax bracket can influence how much salary employees choose to defer into a traditional 401(k), which reduces taxable income for a given year by the amount contributed, or whether to participate in a nonqualified deferred income plan, if that option is available through their employer.

After-Tax Contributions

ARoth 401(k) is funded with after-tax dollars and withdrawals are tax-free during retirement, while a "traditional" 401(k) is funded with pretax dollars and withdrawals are taxed as income during retirement.

Some plan sponsors will allow employees to make additional after-tax—but non-Roth—contributions to a traditional 401(k) once the 2018 participant contribution limit of $18,500 (or $24,500 after age 50) is exceeded, up to the "all sources" contribution limit of $55,000 (or $61,000 after age 50).

If the plan document allows contributions to a non-Roth after-tax 401(k), then by following the correct steps employees can convert these contributions to a Roth individual retirement account (IRA), so that the after-tax traditional 401(k) contributions become, effectively, Roth IRA contributions. This approach gives heavy savers who contribute up to the standard limit more access to Roth contributions than would be the case if they relied solely on direct Roth 401(k) or Roth IRA contributions.

Nondiscrimination Testing Affected

The annual ceiling on employee compensation that can be used to calculate employee-deferral and employer-matching contributions is increasing to $275,000 from $270,000. "The pay cap increase will lessen the impact on annual nondiscrimination testing of maximum deferrals taken by high-earners," at least somewhat, Donohue said, referring to the annual nondiscrimination tests—the actual deferral percentage (ADP) test and actual contribution percentage (ACP) test—that a qualified retirement plan must satisfy.

But other factors could make passing nondiscrimination testing more difficult, depending on workforce demographics. For instance, the dollar limit used to define a highly compensated employee (HCE) for nondiscrimination testing will stay at $120,000 next year.

"When the HCE compensation threshold doesn't increase to keep pace with employee salary increases, employers may find that more of their employees become classified as HCEs," noted Van Iwaarden Associates, a retirement plan services firm in Minneapolis and San Francisco. As a result, "plans may see marginally worse nondiscrimination testing results (including ADP results) if more employees with large deferrals or benefits become HCEs."

Defined Benefit Plan Limits

Regarding defined benefit pension plans, sponsors of traditional pension plans should note that the IRS announced the following cost-of-living adjustments under tax code Section 415, also taking effect on Jan. 1, 2018:

• Annual benefit limit. The maximum annual benefit that may be provided through a defined benefit plan rises to $220,000 from $215,000.
  

• Separation from service. For a participant who separates from service before Jan. 1, 2018, the annual benefit limit for defined benefit plans is computed by multiplying the participant's compensation limit, as adjusted through 2017, by 1.0196. This is an increase from the previous year, when the participant's compensation limit, as adjusted through 2016, was multiplied by 1.0112.
  

Separately, the federal Pension Benefit Guaranty Corp., which insures private-sector defined benefit pension plans, posted 2018 premium rates for single-employer and multiemployer pension plans.

​"PBGC premium rates will increase a lot next year—more than 7 percent for headcount premiums and almost 12 percent for variable premiums," Donohue observed. "These increases come on top of huge increases sponsors have already seen in the past few years, which tripled total premiums paid between 2011 and 2016."

SEPs, SIMPLES and Other Plans

• For SIMPLE (savings incentive match plan for employees of small employers) retirement accounts, the maximum contribution limit remains unchanged at $12,500.
  

• For simplified employee pensions (SEPs), the minimum compensation amount remains unchanged at $600.
  

• For employee stock ownership plans (ESOPs), the maximum account balance in the plan subject to a five-year distribution period will increase to $1,105,000 from $1,080,000, while the dollar amount used to determine the lengthening of the five-year distribution period rises to $220,000 from $215,000.
  

IRA Deduction Phase-Out Ranges

• The limit on annual contributions to an IRA will stay unchanged at $5,500. The additional catch-up contribution limit for individuals ages 50 and over is not subject to an annual cost-of-living adjustment and remains $1,000.
  

• Traditional IRA deduction phase-out. Taxpayers can deduct contributions to a traditional IRA if they meet certain conditions. If during the year either the taxpayer or his/her spouse was covered by a retirement plan at work, the deduction may be phased out until it is eliminated, depending on filing status and income. The phase-out ranges for 2018 are:
  

• For single taxpayers covered by a workplace retirement plan, the phase-out range is $63,000 to $73,000, up from $62,000 to $72,000.
  
• For married couples filing jointly, where the spouse making the IRA contribution is covered by a workplace retirement plan, the phase-out range is$101,000 to $121,000, up from $99,000 to $119,000.
• For an IRA contributor who is not covered by a workplace retirement plan and is married to someone who is covered, the deduction is phased out if the couple's income is between$189,000 and $199,000, up from $186,000 and $196,000.
• For a married individual filing a separate return who is covered by a workplace retirement plan, the phase-out range is not subject to an annual cost-of-living adjustment and remains$0 to $10,000.
  
  

• Roth IRA income phase-out. The adjusted gross income (AGI) phase-out range for taxpayers making contributions to a Roth IRA will be:
  

• For singles and heads of household, the income phase-out range is$120,000 to $135,000,up from $118,000 to $133,000.
• For married couples filing jointly, the income phase-out range is$189,000 to $199,000,up from $186,000 to $196,000.
• For a married individual filing a separate returnwho makes contributions to a Roth IRA, the phase-out range is not subject to an annual cost-of-living adjustment and remains$0 to $10,000.

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Source: Society for Human Resource Management (SHRM)

https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/2018-irs-401k-contribution-limits.aspx?utm_source=SHRM%20Friday%20-%20PublishThis_HRDaily_7.18.16%20(1)&utm_medium=email&utm_content=October%2020%2C%202017&SPMID=00330610&SPJD=07%2F25%2F1996&SPED=04%2F30%2F2018&SPSEG=&SPCERT=&spMailingID=31109088&spUserID=ODM1OTI0MDgxMjMS1&spJobID=1142601600&spReportId=MTE0MjYwMTYwMAS2