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DOL Guidance for Benefit Plans Impacted by Hurricane Harvey | Maryland Benefit Advisors

The U.S. Department of Labor has issued compliance guidance for benefit plans, employers and employees, and service providers who are impacted by Hurricane Harvey. The guidance generally provides relief from various ERISA requirements and time limits for entities in the disaster area. This follows the Internal Revenue Service (IRS) announcement extending certain filing dates, including Form 5500.

Key excerpts from the DOL guidance include:

“The Department recognizes that some employers and service providers acting on employers’ behalf, such as payroll processing services, located in identified covered disaster areas will not be able to forward participant payments and withholdings to employee pension benefit plans within the prescribed timeframe. In such instances, the Department will not–solely on the basis of a failure attributable to Hurricane Harvey–seek to enforce the provisions of Title I with respect to a temporary delay in the forwarding of such payments or contributions to an employee pension benefit plan to the extent that affected employers, and service providers, act reasonably, prudently and in the interest of employees to comply as soon as practical under the circumstances….

“With respect to blackout periods related to Hurricane Harvey, the Department will not allege a violation of the blackout notice requirements solely on the basis that a fiduciary did not make the required written determination….

“The Department recognizes that plan participants and beneficiaries may encounter an array of problems due to the hurricane, such as difficulties meeting certain deadlines for filing benefit claims and COBRA elections. The guiding principle for plans must be to act reasonably, prudently and in the interest of the workers and their families who rely on their health plans for their physical and economic well-being. Plan fiduciaries should make reasonable accommodations to prevent the loss of benefits in such cases and should take steps to minimize the possibility of individuals losing benefits because of a failure to comply with pre-established timeframes.”

The DOL also released FAQs for Participants and Beneficiaries Following Hurricane Harvey. The eight-page FAQ covers issues regarding health plan claims, COBRA continuation coverage, and collecting retirement plan benefits.

ThinkHR will continue to monitor issues affecting employers impacted by Hurricane Harvey.


Federal Employment Law Update – August 2017 | Maryland Benefit Advisors

OSHA Injury Tracking Application Electronic Portal

As of August 1, 2017, the Occupational and Safety Health Administration’s (OSHA) new electronic portal, the Injury Tracking Application (ITA), is available for employers to file web-based reports of workplace injuries or illnesses.

Under OSHA’s electronic recordkeeping rule, covered employers with at least 250 employees must submit the following forms electronically:

  • Log of Work-Related Injuries and Illnesses (Form 300).
  • Summary of Work-Related Injuries and Illnesses (Form 300A).
  • Injury and Illness Report (Form 301).

Access the ITA and read about electronic submission

2017 VETS-4212 Reporting Opened

The 2017 filing season for the VETS-4212 started on August 1, 2017 and ends on September 30, 2017. The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) requires federal contractors and subcontractors subject to the act’s affirmative action provisions who enter into or modify a contract or subcontract with the federal government, and whose contract meets the criteria set forth in the law, to annually report on their affirmative action efforts in employing veterans.

The U.S. Department of Labor’s Veterans’ Employment and Training Service has a legislative requirement to collect, and make available to the Office of Federal Contract Compliance Programs, reported data contained on the VETS-4212 report for compliance enforcement.

File the 2017 VETS-4212 Report

OSHA Revises Online Whistleblower Complaint Form

On July 28, 2017, the Occupational Safety and Health Administration (OSHA) revised its online whistleblower complaint form to help users file a complaint with the appropriate agency. OSHA administers more than twenty whistleblower protection laws, including Section 11(c) of the Occupational Safety and Health (OSH) Act, which prohibits retaliation against employees who complain about unsafe or unhealthful conditions or exercise other rights under the Act. Each law has a filing deadline, varying from 30 days to 180 days, that starts when the retaliatory action occurs.

The updated form guides users through the complaint process, providing essential questions at the start to assist users in understanding and exercising their rights under relevant laws. The new system also includes pop-up boxes with information about various agencies for individuals who indicate that they have engaged in protected activity that may be addressed by an agency other than OSHA.

In addition to the online form, workers may file complaints by fax, mail, or hand-delivery; contacting the agency at 800-321-6742; or calling an OSHA regional or area office.

View the new online form in English or Spanish

Prevailing Health and Welfare Fringe Benefits Rate Announced Under the McNamara-O’Hara Service Contract Act

On July 25, 2017, the U.S. Department of Labor (DOL) released an all agency memorandum (number 225) announcing that under the McNamara-O’Hara Service Contract Act (SCA) the employee-by-employee benefit will be $4.41 per hour, or $176.40 per week, or $760.40 per month. Additionally, the average cost fringe benefit rate will also be $4.41 per hour.

The McNamara-O’Hara Service Contract Act requires contractors and subcontractors performing services on prime contracts in excess of $2,500 to pay service employees in various classes no less than the wage rates and fringe benefits found prevailing in the locality, or the rates (including prospective increases) contained in a predecessor contractor’s collective bargaining agreement. The DOL issues wage determinations on a contract-by-contract basis in response to specific requests from contracting agencies. These determinations are incorporated into the contract.

The new rate became effective August 1, 2017.

Read Memorandum Number 225 and get more information on the SCA

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How Long do Employers Need to Keep Payroll Records? | Maryland Benefit Advisors

Under U.S. federal law, employers must keep the payroll records of their employees or former employees for a certain length of time. The amount of time, however, varies according to which statute you refer to, which can make knowing how long to keep employee records confusing. By keeping in mind the required time limits under each statute as well as what payroll-related records the statute wants you to retain and why, you can more easily develop a system that keeps payroll records as long as the law requires.


Payroll records are, generally, any records that relate to the hours an employee works and the wages paid to him or her, according to the U.S. Department of Labor. Under the Fair Labor Standards Act, payroll records include information on the hour and day each work week begins; the number of hours worked in each work day and each work week; the total amount the employee earned working non-overtime hours; the regular hourly pay for any week in which the employee worked overtime; total overtime pay for each work week; the amounts of any additions or deductions to the employee’s pay each week; the total amount paid for each pay period; and the dates covered by each pay period, according to the U.S. Department of Labor. This information should be marked with the employee’s personal information, including name, address, occupation and sex. If the employee is less than 19 years old, also include his date of birth.

Applicable Laws

As of 2010, only two federal statutes require employers to retain payroll records for any length of time, according to the U.S. Department of Labor and the U.S. Equal Employment Opportunity Commission, or EEOC. These two statutes are the Fair Labor Standards Act and the Age Discrimination in Employment Act. For the FLSA and the ADEA, most payroll records must be kept for three years, according to the U.S. Department of Labor and the EEOC. Although the FLSA allows employers to discard some supplementary payroll records, including wage tables, after two years, the ADEA requires that employers keep these records for three years.


The ADEA does not require employers to keep payroll records in any particular format, as long as the records are available when the EEOC requests them, according to the EEOC. The FLSA does not require that time clocks be used to keep track of employee hours, according to the U.S. Department of Labor. Nor does the FLSA require that records be kept in a particular format. However, according to the U.S. Department of Labor, microfilm or punched tape should not be used unless the employer also has the equipment to make these formats easily readable.


The purpose of maintaining employee payroll records under the Fair Labor Standards Act is to protect an employee’s rights to fair pay, according to the U.S. Department of Labor, including the right of covered, nonexempt workers to the minimum wage and to overtime pay. The records may also be used to ensure an employer is not employing children too young to work legally and is not employing children who may work legally for an illegal number of hours. Maintaining records under the Age Discrimination in Employment Act is intended to ensure an employee who discovers she may have been discriminated against due to his age is able to find the information necessary to prove or disprove her claim, according to the EEOC.


Under the FLSA and the ADEA, payroll records are generally kept for three years following the date of an employee’s termination, according to the EEOC. The ADEA, FLSA, and other statutes may require an employer to keep different portions of an employee’s file for different lengths of time. For instance, while the ADEA requires payroll records to be kept for three years, it requires basic information about the employee to be kept only one year, according to the EEOC. To ensure your business meets all its recordkeeping retention requirements, consult a qualified employment law attorney.

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Employer Exchange Notices–No Changes Needed | Maryland Benefit Advisors

Employers are required to give all new hires a Notice of Marketplace Coverage Options – often referred to as the Employer Exchange Notice. The U.S. Department of Labor (DOL) provides model notices that employers can download, customize, and distribute to workers. Although the model notices were scheduled to expire May 31, 2017, the DOL has now extended them without any changes through May 31, 2020.


Here are a few quick reminders for employers:

  • Distribute the notice to all employees within 14 days of hire:
    • Include all employees (i.e., full-time, part-time, seasonal, temporary, union, and others), regardless of whether eligible for health coverage at work.
    • Disregard dependents, retirees, former employees, or COBRA beneficiaries.
  • Model notices are posted on the DOL website (see below). There are two versions: one for employers that offer health coverage to some or all employees and the other for employers that do not have any group plans.
  • Notices are available in English and Spanish. Although non-English notices are not specifically required, general DOL guidance refers to providing notices “in a manner calculated to be understood by the average employee.”
  • Download the model notice, then fill in the blanks and variable items as needed. Links are provided below.
  • Distribute the completed notice by first-class mail to the employees’ homes. Alternatively, employers may use electronic delivery if the method meet all DOL guidelines:
  • The delivery method ensures actual receipt (such as via email directly to the employee instead of merely posting the material on the company intranet);
  • The employee regularly accesses the electronic media as an integral part of his or her regular job duties; and
  • The employer notifies the employee of the significance of the material and that a paper copy is available at no cost upon request.

Note: A small employer that is not covered by the Fair Labor Standards Act (FLSA) may be exempt from the notice requirement if it is not a hospital, care facility, school or governmental agency.

Model Notices:

The DOL model notices are available below. There are separate versions for employers that offer health coverage to some or all employees and employers that do not offer any health coverage. The model notices contain blank and variable items that must be completed by the employer before distributing to employees.

Model Notice for employers who offer a health plan to some or all employees

Model Notice for employers who do not offer a health plan

Spanish – Model Notice for employers who offer a health plan to some or all employees

Spanish – Model notice for employers that do not offer a health plan

The DOL also provides technical guidance on preparing and distributing the notice. Lastly, here is a copy of the DOL rule relating to the use of electronic delivery.

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DOL Fiduciary Rule Takes Effect June 9 | Maryland Benefit Advisors

In an editorial in the Wall Street Journal yesterday, Department of Labor Secretary Alexander Acosta stated that the DOL’s fiduciary rule will become effective June 9, 2017. “We have carefully considered the record in this case, and the requirements of the Administrative Procedure Act, and have found no principled legal basis to change the June 9 date while we seek public input,” he wrote and added, “Respect for the rule of law leads us to the conclusion that this date cannot be postponed.”

The rule was published in April 2016 (see our blog on the original ruling) and requires those who provide retirement investment advice to adhere to a fiduciary standard and put their clients’ best interest before their own profits. The rule also prohibits fiduciaries to plans, plan participants, and individual retirement account (IRA) owners from receiving payments creating conflicts of interest unless they comply with conditions designed to minimize the potential effects of a conflict. It was initially scheduled to take effect April 10, 2017.

Prior to the effective date, President Trump directed that the rule’s implementation be delayed for 60 days until June 9, 2017 so that the DOL could assess the regulation for changes or repeal.  At the same time as Secretary Acosta’s announcement, the DOL published a field assistance bulletin and frequently asked questions to assist fiduciaries with compliance beginning on June 9 while the agency continues its final review prior to the full implementation date of January 1, 2018.

During the time between June 9, 2017 and January 1, 2018, the DOL’s temporary enforcement policy states that “the Department will not pursue claims against fiduciaries who are working diligently and in good faith to comply with the fiduciary duty rule and exemptions, or treat those fiduciaries as being in violation of the fiduciary duty rule and exemptions.” That’s good news for fiduciaries.

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The DOL’s Final Overtime Rule Saga Continues | Maryland Benefit Consultants

The change in the regulations that would increase the salary threshold for overtime exemption that was all over the news for the last several months may now be decided by the end of June.

The Fifth Circuit Court of Appeals has granted the U.S. Department of Labor (DOL) another 60-day extension of time to file its final reply brief in the in the pending appeal of a nationwide injunction issued by a federal district court in Texas blocking implementation of the DOL’s final overtime rule. As we reported at the time, the final rule, which raised the salary threshold for the white collar overtime exemptions, was scheduled to go into effect on December 1, 2016. The final brief is now required to be filed by June 30, 2017. In its unopposed motion, the DOL stated that the extension was necessary “to allow incoming leadership personnel adequate time to consider the issues” and noted that the nominee for Secretary of Labor has not been confirmed.

As a result of the extension, it is not likely that employers will see any resolution of this issue until midsummer at the earliest. This also assumes that President Trump’s nominee for Secretary of Labor, Alexander Acosta, is confirmed within the next few weeks.

By Rick Montgomery, JD
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Department of Labor Delays Enforcement of the Fiduciary Duty Rule | Maryland Benefit Advisors

On April 4, 2017, the Department of Labor (DOL) announced that the applicability date for the final fiduciary rule will be extended, and published its final rule extending the applicability date in the Federal Register on April 7. This extension is pursuant to President Trump’s February 3, 2017 presidential memorandum directing the DOL to further examine the rule and the DOL’s proposed rule to extend the deadline released on March 2, 2017.

The length of the extension differs between certain requirements and/or components of the rule.  Below are the components and when and how applicability applies:

  • Final rule defining who is a “fiduciary”: Under the final rule, advisors who are compensated for providing investment advice to retirement plan participants and individual account owners, including plan sponsors, are fiduciaries. The applicability date for the final rule is extended 60 days, from April 10 until June 9, 2017. Fiduciaries will be required to comply with the impartial conduct or “best interest” standards on the June 9 applicability date.
  • Best Interest Contract Exemption: Except for the impartial conduct standards (applicable June 9 per above), all other conditions of this exemption for covered transactions are applicable January 1, 2018. Therefore, fiduciaries intending to use this exemption must comply with the impartial conduct standard between June 9, 2017 and January 1, 2018.
  • Class Exemption for Principal Transactions: Except for the impartial conduct standards (applicable June 9 per above), all other conditions of this exemption for covered transactions are applicable January 1, 2018. Therefore, fiduciaries intending to use this exemption must comply with the impartial conduct standard between June 9, 2017 and January 1, 2018 and thereafter.
  • Prohibited Transaction Exemption 84-24 (relating to annuities): Except for the impartial conduct standard (applicable June 9 per above), the amendments to this exemption are applicable January 1, 2018.
  • Other previously granted exemptions: All amendments to other previously granted exemptions are applicable on June 9, 2017.

By Nicole Quinn-Gato, JD
Originally published by

The Overtime Rule Saga Continues… Maryland Benefit Advisors

All the hullabaloo about the potential new Department of Labor overtime rules was for naught as the implementation of the law has been delayed again. President Trump’s Department of Justice (DOJ) requested extensions to the appeal process to determine its strategy and finalize its standpoint on the proposed regulations. Some political experts theorize that the need for an extension is the result of delays in President Trump’s appointment of a Secretary of Labor. The President’s first nominee, Andrew Puzder, withdrew and confirmation hearings for his second nominee, Alexander Acosta, have not been scheduled.

Here’s where we are so far:

  • December 2016 was the effective date, but it was delayed by court order in November 2016.
  • Obama’s DOJ requested expedited review to get the law pushed through but Trump’s DOJ requested an extension; extension granted.
  • Trump’s DOJ requested another extension, unopposed, and it was granted.

In the legal world the result of these delays is that the appeal will not be fully briefed until May 1, 2017. This means the law is to enactment as Warren Beatty is to envelopes — no one knows what’s going on (at least until May) and the confusion may continue to go unresolved with no clear date of resolution.

What to Do Now

In the meantime, employers should be informed about how the rule, if implemented, would impact their workplace. You can read our blog post to learn more. As always, ensure that your company maintains compliance with current overtime rules and regulations, and use this time of legal indecision as an opportunity to review your practices and policies in accordance with state and federal wage payment laws.

By Samantha Yurman, JD
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DOL Increases Penalty Amounts to Adjust for Inflation | Maryland Employee Benefits

0123For the second time in less than a year the Department of Labor (DOL) has increased the civil monetary penalties assessed or enforced by the DOL. The increases were announced in a final rule issued by the DOL on January 18, 2017. The increases were made pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires federal agencies to annually adjust their civil money penalties for inflation, based on the Consumer Price Index for All Urban Consumers (CPI-U), no later than January 15 of each year. The inflation adjustment for 2017 was based on the percentage change between the October 2016 CPI-U and the October 2015 CPI-U. The penalties were last increased on August 1, 2016.

The increased penalties apply to a broad range of laws enforced by the DOL including:

  • The Black Lung Benefits Act.
  • The Contract Work Hours and Safety Standards (CWHSSA).
  • The Employee Polygraph Protection Act (EPPA).
  • The Employee Retirement Income Security Act (ERISA).
  • The Fair Labor Standards Act (FLSA).
  • The Family and Medical Leave Act (FMLA).
  • The Federal Mine and Safety Health Act.
  • The Immigration and Nationality Act.
  • The Longshore and Harbor Workers’ Compensation Act.
  • The Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
  • The Occupational Safety and Health Act (OSH Act).
  • The Walsh-Healey Public Contracts Act (PCA).

The new penalties apply to violations that occurred after November 2, 2015, and for which penalties were assessed after January 13, 2017. View the updated penalties for violations of laws enforced by the Wage and Hour Division of the DOL.


By Rick Montgomery, JD, Originally published by ThinkHR – Read More

2017: What HR Can Do to Prepare for a Big Year of Change | Maryland Employee Benefits

Written 2017 With Fireworks In The Night Sky

Employers saw unprecedented changes to human resources management in 2016, including Affordable Care Act (ACA) compliance, new Fair Labor Standards Act (FLSA) regulations, parental leave laws and a push for equal pay. With a new year and a new president taking office, 2017 is sure to usher in some major changes and HR challenges that could have significant impact on businesses large and small. Here are a few of the hot button issues to keep on your radar and how to prepare for them:

Keep current on ACA changes
With President-elect Trump taking office, the ACA finds itself once again in the national spotlight, this time standing on more uncertain ground than ever before. Whether the ACA will be repealed fully, partially, or left as is, it’s important for employers to stay current on compliance to avoid penalties and fees. For more information, seek out the helpful questions and answers on the ACA reporting requirements that the IRS provides here.

Don’t assume the law is barred
In November 2016, a federal judge in Texas issued an injunction blocking the new overtime regulations slated to go into effect the first of December. This would have doubled the FLSA’s salary threshold for exemption from overtime pay. Despite the injunction, many employers have already adjusted workers’ salaries or reclassified their employees. While we wait to see what comes from the Department of Labor’s appeal, it is a safe bet for employers to leave their decisions in place, and not assume the law will be permanently barred.

Make a good (and fair) recruitment process a priority
Finding the best employees is one of the most critical aspects to your business. 2016 saw big pushes with diversity initiatives and blind hiring, a practice which means being hired without disclosing your name, educational background or work experience to your future employer. While we expect these trends to carry over in 2017, we also predict a renewed focus on improving the overall job candidate experience. A recent study found that 60 percent of job seekers have had at least one bad recruitment experience, and 72 percent of those report having shared their experience with a recruiter or career websites. In order to ensure that it’s a productive experience for all, employers should maintain consistent communications during the hiring process and be prepared to share tailored feedback should the candidate request it.

Consider updating your performance review process
We’ve all done them, and it’s likely we’ve all dreaded them at least once. One study found that a quarter of employees surveyed found their annual performance reviews were ineffective and didn’t actually help their performance. 2016 saw plenty of conversations about how to improve the outdated process and we expect this to continue in 2017. One strategy that we see gaining popularity in 2017 is building out the review process to include biannual or even quarterly reviews. More frequent reviews may help build rapport between managers and their employees and encourage all parties to stay on track with their goals and objectives for the year.

Focus on company culture and brand
In line with recruiting and employee feedback strategies, employee engagement continues to be a hot button issue. Retaining employees is critical to a business’ success and the last year brought this to light—85% of executives surveyed in the 2016 Deloitte Human Capital Trends report ranked employee engagement as a top priority. We expect to see this trend carry over into 2017 with an added emphasis on wellness programs and work-life balance. As a company’s brand and culture becomes more critical than ever, it’s important to make concerted efforts to keep employees happy, healthy, and engaged.

One of the many keys to a company’s success is being aware of the constantly changing work landscape. As you enter 2017, keep these predictions and actions in mind and we’ll do our best to keep you up to date on the latest.


Originally published by ThinkHR – Read More