Employment Training, Practices & Procedures

The Internal Revenue Service (“IRS”) has released Notice 2018-94, which extends the due date for furnishing the 2018 Form 1095-B and Form 1095-C to individuals from January 31, 2019 to March 4, 2019.

This extension is automatic, and, as a result, the IRS will not formally respond to any pending extension requests for furnishing the forms to individuals. In addition, filers do not need to submit a request or documentation to take advantage of this extension. Despite the extension, the IRS is encouraging employers and other coverage providers to furnish the 2018 statements as soon as they are able.

Forms 1095-B are used to report whether individuals have minimum essential coverage (“MEC”) and, therefore, are not liable for the individual shared responsibility payment. Forms 1095-C are used to report information about offers of health coverage and enrollment in health coverage for employees, to determine whether an employer owes an employer shared responsibility payment, and to determine the eligibility of employees for the premium tax credit. Under the Affordable Care Act’s (“ACA’s”) employer mandate, applicable large employers (“ALEs”) (those employing on average at least 50 full-time employees and full-time equivalents in the prior calendar year), are required to offer MEC to at least 95% of their full-time employees (and their dependents) that is “affordable” and provides “minimum value” to avoid applicable penalties. [1]

Notice 2018-94 does not extend the due date for filing the Forms 1094-B, 1095-B, 1094-C and 1095-C with the IRS, with the due date remaining February 28, 2019, if not filing electronically, or April 1, 2019, if filing electronically. Employers may still obtain an automatic 30-day extension to file the required forms by filing a Form 8809 with the IRS on or before the forms’ due date. An employer may also receive an additional 30-day extension under certain hardship conditions.

Employers who fail to comply with the extended due dates for furnishing Forms 1095-B and 1095-C to individuals or for filing the Forms 1094-B, 1095-B, 1094-C and 1095-C are subject to penalties. However, an employer that fails to meet the relevant due dates should still furnish and file the required forms as soon as possible. The IRS will take such furnishing and filing of the forms into determining whether to decrease penalties for reasonable cause.

Below is a chart of the applicable deadlines for 2018 Forms and the applicable reporting entities:

Reporting Entity

No Plan

Fully-Insured Plan Self-Insured Plan

Deadline for 2018 Forms

Non-ALE

No filing required. No filing required. Forms 1094-B and 1095-B To individuals:

March 4, 2019

 

To the IRS:

February 28, 2019, if filing by paper; or

April 1, 2019, if filing electronically.

ALE

Forms 1094-C and 1095-C (except Part III; leave blank). Forms 1094-C and 1095-C (except Part III; leave blank). Forms 1094-C and 1095-C for employees.

Either B- or C-Series forms for non-employees.

Insurance Provider

No filing required. Forms 1094-B and 1095-B. Not applicable.

Extension of Good Faith Relief

Similar to the good-faith relief provided in 2015, 2016, and 2017, the IRS will not impose penalties on employers that can show that they made good-faith efforts to comply with the requirements for calendar year 2018. This relief is available only for incorrect and incomplete information reported on the statements or returns, such as missing and inaccurate taxpayer identification numbers and dates of birth. In determining good faith, the IRS will consider whether an employer made reasonable efforts to comply with the requirements (e.g., gathering and transmitting the necessary data to an agent or testing its ability to transmit information).

Good faith relief is not available to employers who have failed to timely furnish or file a statement or comply with the regulations. However, if an employer is late filing a return, it may be possible to get a penalty abatement for failures that are due to reasonable cause and not willful neglect. To establish reasonable cause, an employer must show that it acted in a responsible manner and that the failure was due to significant mitigating factors or events beyond its control.

Individual Mandate and Reporting In Future Years

Individuals do not need to wait to receive the Form 1095-C to file their 2018 tax returns, but should keep these forms for their records. They may rely on other information provided by their employers or other service providers to determine their eligibility for a premium tax subsidy and confirming whether they have had MEC to avoid an individual mandate penalty in 2018. Individuals do not need to send the information they relied upon to the IRS when they send their returns.

Notably, while the individual shared responsibility payment is reduced to zero beginning January 1, 2019, the IRS will continue to study whether and how the reporting requirements should change, if at all, for future years. In the meantime, employers and other service providers should continue to collect information in 2019 needed to comply with all ACA reporting requirements.

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[1] The penalties for failure to comply with these ACA requirements could result in penalties under Internal Revenue Code Section 4980H(a) (“A Penalty”) and Section 4980H(b) (“B Penalty”). The “A Penalty” is $2,320 in 2018 ($2,500 in 2019) for each full-time employee (minus 30 employees) of the employer, including full-time employees who have MEC from another employer plan or another source. The “B Penalty” is $3,480 in 2018 ($3,750 in 2019) for each employee that obtains a premium tax credit.

Cannabis has been legalized in Canada as of October 17, 2018. What does this mean for employers with employees traveling to and from Canada? Can travelers from Canada to the United States with legally purchased cannabis simply drive to a state where recreational or medical use of cannabis is legal? The bottom line: Employers should remind employees that they cannot cross into the United States with Canadian cannabis under any circumstances.

The framework created in Canada did not change laws regarding borders. A traveler who purchases legal cannabis in Canada may not enter the United States with it, regardless of whether the person is traveling to a state that has legalized marijuana. Cannabis remains illegal under federal law and crossing any U.S. – Canada border will result in legal prosecution by the federal government. This applies to any amount and any form of cannabis, including medical marijuana.

The same is true if one were returning to Canada with legally purchased cannabis from Canada. This act is illegal. There is no situation where a receipt can be shown to “prove” the origin. The origin does not matter. The act of taking cannabis across the border is illegal.

Further, for the same reasons, cannabis cannot be brought on international flights even if the flight originated from Canada. It is expected that declaration forms on flights originating from Canada traveling to the U.S. may include questions on cannabis. Given how relatively new the legalization and regulation of cannabis is in Canada, travelers should expect to see and/or hear increased questions about cannabis possession and use, generally, at the borders.

Forget bringing cannabis purchased in Canada into the U.S. Even a single past use of cannabis may lead travelers to unforeseen legal troubles. The Canadian government warns that previous use of cannabis could result in the traveler being denied entry to the destination country, including the U.S. This could be a lifetime ban that may take years to sort for these noncitizens.

Certain other travelers may be inadmissible to the U.S. due to their ties to cannabis. Canadian citizens working in the marijuana industry, for example, may be denied entry to the U.S. if they are traveling to the U.S. for reasons related to that industry. In addition, while Canada intends to pardon citizens with simple marijuana possession convictions, the U.S. does not recognize foreign pardons, and so these individuals also could be deemed inadmissible to enter the U.S.

Last month, the New York State Court of Appeals invalidated a state Department of Health (DOH) regulation that restricted certain health care providers contracting with the state from paying executives more than $199,000 annually, regardless of whether the funds came from the state or not. However, the Court upheld two other DOH regulations; one that limits providers from using public tax-payer money directly to pay executives in excess of $199,000 annually, and another that limits the amount of public funds used for administrative costs.

In January 2012, Governor Andrew Cuomo issued Executive Order 38 in response to media reports calling out high executive compensation rates among nonprofit health care organizations receiving funds from Medicaid. Executive Order 38 directed the DOH to regulate the use of state funds for executive compensation and administrative costs. Consistent with this executive order, the DOH implemented three regulations that imposed: (1) a “hard cap” prohibiting covered providers from using public funds directly to pay executives more than $199,000 (2) another “hard cap” limiting the percentage of public funds used for administrative costs to fifteen percent annually by 2015; and (3) a “soft cap” subjecting covered providers to penalties should they pay executives, with certain exceptions, more than $199,000, regardless of whether the money used to pay them came from public or private sources.

Shortly after the regulations were announced, a group of nursing homes, assisted-living programs, home-care agencies, and trade associations brought lawsuits challenging the DOH’s authority to issue the regulations. These lawsuits, arguing that the DOH exceeded its regulatory authority in promulgating the regulations, eventually made their way all the way up to the courts to the Court of Appeals.

The Court’s majority opinion in LeadingAge New York, Inc. v. Shah, authored by Chief Judge DiFiore, held that the hard cap regulations fell within the DOH’s regulatory authority and were valid agency actions. With regard to the soft cap, however, the majority concluded that the DOH did in fact exceed its authority, usurped the Legislature’s role, and violated the separation of powers doctrine. Accordingly, the soft cap regulation subjecting covered providers to penalties if they paid executives above the $199,000 threshold, regardless of the source of funds, was struck down by the Court.

In accordance with this decision, covered health care providers who contract with the state will no longer need to comply with the “soft cap” regulation or fear penalties for failure to do so. However, health care providers covered by the “hard cap” regulations will still need to comply with the limitations set under those regulations, absent an applicable exception.

Employers and health plans should be aware that two recent federal decisions have recognized that the non-discrimination provision in the Affordable Care Act prohibits discrimination on the basis of gender identity. Plans cannot categorically exclude coverage for procedures to treat gender dysphoria.

In Boyden v. Conlin, the U.S. District Court for the Western District of Wisconsin found that the state’s exclusion of gender reassignment-related procedures from the state employees’ health insurance coverage constitutes sex discrimination in violation of Section 1557 of the Affordable Care Act (the “ACA”) and Title VII of the Civil Rights Act. Section 1557 of the ACA prohibits discrimination and the denial of benefits under a health program or activity, any part of which is in receipt of federal financial assistance, on the basis of race, color, national origin, sex, age or disability. The plaintiffs, two transgender women employed by the State of Wisconsin, also alleged that the exclusion violated the Equal Protection Clause of the Fourteenth Amendment.

This case involved the exclusion of “procedures, services, and supplies related to surgery and sex hormones associated with gender reassignment” from the health insurance coverage. Pursuant to the exclusion, the health plan did not cover hormone therapy involving gender reassignment surgery, or the surgery itself. Defendants argued that the exclusion did not discriminate on the basis of sex because the plan excludes coverage for all cosmetic treatments for psychological conditions, and because the exclusion simply prohibits coverage for gender reassignment procedures, not because plaintiffs are transgender. The court disagreed, finding that the case constituted a “straightforward case of sex discrimination” because the exclusion treated people differently based on their natal sex. The court also found that the exclusion implicated “sex stereotyping by limiting the availability of medical transition … thus requiring transgender individuals to maintain the physical characteristics of their natal sex.”

The court also found liability against the state on plaintiffs’ Equal Protection Clause claim. In applying heightened scrutiny review, the court concluded that the state failed to show that the exclusion was the product of cost concerns or concerns about the safety and efficacy of gender reassignment surgery and hormone therapy. Because the state could not put forth evidence of a genuine reason for the exclusion, the court found in favor of plaintiffs on the Equal Protection Claim.

Two days after the decision in Boyden, in Tovar v. Essentia Health, the District Court for the District of Minnesota held that Section 1557 prohibits discrimination on the basis of gender identity. In that case, plaintiffs alleged that Essentia Health and HealthPartners Inc. violated Section 1557 by sponsoring or administering a plan that categorically excluded coverage for all health services and surgery related to gender reassignment. Section 1557 incorporates four federal civil rights statutes that prohibit discrimination on the basis of: race, color and national origin (Title VI); sex (Title IX); age (ADEA); and disability (Rehabilitation Act). Concluding that Title IX’s prohibition against sex discrimination should be read as coextensive with Title VII, and noting that courts have recognized a cause of action under Title VII for sex discrimination based on gender identity and gender-transition status, the court determined that “sex discrimination encompasses gender-identity discrimination.” The court thus concluded that Section 1557 prohibits gender identity discrimination and denied defendants’ motion to dismiss.

The court also declined to stay the action pending resolution of Franciscan Alliance, Inc. v. Burwell, in which the Northern District of Texas issued a nationwide injunction enjoining enforcement of the Department of Health and Human Services (HHS) regulations providing that Section 1557’s prohibition of sex discrimination encompasses gender identity discrimination. The Minnesota court concluded that a stay was not warranted because its conclusion that Section 1557 prevents discrimination based on gender identity is based on the plain reading of the statute and does not rely on the Franciscan Alliance decision.

Employer Takeaways

These two cases are the latest in a series in which plaintiffs allege that their employer sponsored health plans are designed in a manner that discriminates based on gender identify in violation of Section 1557 of the ACA and Title VII of the Civil Rights Act. While an earlier decision (Baker v. Aetna Life Insurance Co., 228 F. Supp. 3d 764 (N.D. Tex. 2017)) by the Northern District of Texas declined to find a cause of action for gender identity discrimination under Section 1557, these decisions are in line with the current trend to allow gender identity discrimination claims to be pursued under Section 1557. Therefore, while HHS continues its current policy of non-enforcement of allegations of gender identity discrimination under Section 1557, employers should be aware of provisions in their group health plans that exclude coverage for transgender benefits and litigation risks that these provisions may pose.

Notably, the plans in both Boyden and Tovar included categorical exclusions for services and/or surgeries related to gender reassignment or transition. These categorical exclusions often are a red flag. By contrast, in Baker, the plan did not categorically exclude gender reassignment procedures; there, the insurance company denied the plaintiff’s request for breast augmentation surgery as not medically necessary. The Baker court found in favor of defendants on both the Section 1557 and Title VII claims. Thus, employers are advised to review their plans to ensure that services to treat gender dysphoria and related conditions are made available to their covered employees.

President Trump’s recently issued Executive Order entitled “Strengthening Retirement Security In America” (the “EO”) may be helpful to businesses that sponsor or participate in multiple employer retirement plans (“MEPs”), as well as single employer plans, even if the sponsors and employers are not small business owners. While the stated purpose of the EO, which was issued on August 31, 2018 (the “EO Date”), is to “promote retirement security for America’s workers,” the EO directs attention to small business owners (less than 100 employees), noting that such businesses are less likely than larger businesses to offer retirement benefits. The EO also notes that regulatory burdens and complexity can be costly and discourage businesses, especially small ones, from offering retirement plans to employees. This post summarizes the four actions identified in the EO that the Federal Government may take to promote retirement security. While these actions are intended to benefit small businesses, large businesses that participate may benefit as well.

First, the EO may expand the circumstances under which a business or organization can sponsor or participate in an MEP. The EO directs the Secretary of Labor to consider, within 180 days following the EO Date, proposing regulations to clarify when a group or association of employers or other appropriate business or organization can be treated as an “employer” within the meaning of Section 3(5) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The definition of “employer” is significant, as an employee benefit plan, such as an MEP, is typically sponsored by an “employer”. (An “employee organization”, such as a labor union, may also sponsor an employee benefit plan.) If an MEP were sponsored by businesses that were not considered a “group or association of employers” pursuant to Section 3(5) of ERISA, the MEP would not be treated as a single plan covering all of the participating businesses. In that case, each business participating in the MEP would be treated as sponsoring its own plan for all purposes under ERISA and would have to separately comply with ERISA’s requirements, such as preparing a written plan document and summary plan description, having an ERISA bond, and filing a Form 5500. Clarification of the term “employer” may allow businesses that sponsor or participate in single employer plans to treat such plans as an MEP and thereby minimize their individual responsibilities under ERISA. The clarification may also create new opportunities for businesses to sponsor MEPs.

Second, the EO may reduce compliance burdens for MEP sponsors. The EO directs the Secretary of the Treasury to consider, within 180 days following the EO Date, amending regulations to modify the rule providing that if one participating employer in an MEP fails certain non-discrimination requirements, the entire MEP fails. For example, under current Treasury regulations, the actual deferral percentage test and actual contribution percentage test are applied separately to each participating employer in the MEP, as if that employer maintained a separate plan. If one participating employer fails one of the tests, then the MEP fails the test and could potentially be disqualified for all participating employers. This regulation can present a dilemma for MEP sponsors, as they cannot be certain that each participating employer will satisfy the non-discrimination requirements. Therefore, modification of the regulations should benefit businesses that sponsor MEPs.

Third, the EO may reduce the costs associated with required disclosures to participants in MEPs, and in single employer plans. The EO directs the Secretaries of Labor and Treasury to review, within one year following the EO Date, actions that could make retirement plan disclosures more useful for participants, while reducing costs for sponsors and participating employers.

Finally, the EO directs the Secretary of the Treasury to determine, within 180 days following the EO Date, whether the actuarial tables used to calculate the amount of required minimum distributions should be updated annually (or on another periodic basis) to reflect current mortality data. This update could reduce the amount of annual required minimum distributions, which would benefit participants in single employer plans, as well as in MEPs. Such change could also reduce the administrative burden on plan sponsors and participating employers associated with making these distributions.

Takeaways

If the actions described above result in changes in law, such changes should benefit businesses that sponsor or participate in MEPs and single employer plans.   In addition, such changes may provide new opportunities for businesses to sponsor MEPs. Given the time frames imposed by the EO, businesses might see proposed regulations or other guidance addressing some of these changes during 2019.

Our colleagues at Epstein Becker Green has a post on the Retail Labor and Employment Law blog that will be of interest to our readers in the health care industry: “NYC Commission on Human Rights Issues Guidance on Employers’ Obligations Under the City’s Disability Discrimination Laws.”

Following is an excerpt:

The New York City Commission on Human Rights (“Commission”) recently issued a 146-page guide titled “Legal Enforcement Guidance on Discrimination on the Basis of Disability” (“Guidance”) to educate employers and other covered entities on their responsibilities to job applicants and employees with respect to both preventing disability discrimination and accommodating disabilities. The New York City Human Rights Law (“NYCHRL”) defines “disability discrimination” more broadly than does state or federal disability law, and the Guidance is useful in understanding how the Commission will be interpreting and enforcing the law. …

Read the full post here.

Featured on Employment Law This Week: OSHA plans to roll back a controversial reporting rule initiated at the end of the Obama administration.

OSHA has proposed rescinding parts of a 2017 rule that requires companies with 250 or more employees to submit detailed reports on workplace injuries. OSHA says this move would protect employee privacy and reduce the burden for employers. Three organizations have filed suit over the proposed changes, saying that the data from the detailed reports helps improve workplace safety procedures. .

Watch this week’s Employment Law This Week episode below.

The New York City Council (the “NYCC”) has proposed to establish a “Savings Access New York Retirement Program” (the “NYC Retirement Program”) that would require New York City private-sector employers with at least 10 employees to offer a new savings program to employees who are not eligible to participate in an employer-provided savings plan (such as a 401(k) or 403(b) plan). Currently the NYCC proposal is in committee, and no further action has been taken to date.

Although passage of the NYC Retirement Program is far from certain, this proposal is consistent with other state and local government legislative efforts to increase the retirement savings of employees. To assist employers with long-range benefits planning, this blog provides a high-level summary of the NYCC proposal and the potential questions and issues that employers may face if required to implement the NYC Retirement Program.

Summary of the NYC Retirement Program

  • An employer, whether for-profit or otherwise, with a physical presence in NYC will be a “covered employer” subject to the NYC Retirement Program if the employer (i) currently employs no fewer than 10 employees and has employed no fewer than 10 employees for the prior calendar year, (ii) has been in continuous operation for at least two years, and (iii) has not offered, in the previous two years, a retirement plan to its “eligible employees” (as defined below).
  • An employee will be eligible for the NYC Retirement Program if such employee (i) is at least 18 years old, (ii) is employed part-time or full-time for compensation in New York City by a covered employer, and (iii) has not been offered a retirement plan by the covered employer during the preceding two years. Under the NYC Retirement Program, a “retirement plan” includes a qualified retirement plan under Section 401(a) and Section 403(a) and (b) of the Internal Revenue Code of 1986, as amended, however, many such retirement plans exclude certain classifications of employees, such as part-time or temporary employees that would be covered by the NYC Retirement Program.
  • The NYC Retirement Program provides for an automatic 3% contribution via payroll deduction by eligible employees to a Roth or traditional IRA. The employee will be permitted to opt-out of the program or to contribute an amount other than 3%.
  • Covered employers will have the following obligations:
    • Enrolling eligible employees;
    • Remitting payroll deductions for deposit in the NYC Retirement Program;
    • Providing information to eligible employees about the NYC Retirement Program; and
    • Maintaining records documenting compliance with the NYC Retirement Program.
  • Covered employers that fail to comply with the NYC Retirement Program may be subject to civil monetary penalties, the amount of which will be based on the number of eligible employees affected and the duration of the compliance failure.
  • Administrative fees for the NYC Retirement Program will be allocated pro rata to the accounts of eligible employees.
  • The NYC Retirement Program is intended to be exempt from the Employee Retirement Income Security Act of 1974, as amended, although the current proposal does not indicate the exemption that will be used.

Takeaways for Employers

Given the potential reach of the NYCC proposal and the ambiguities it raises, employers with a presence in New York City should monitor the status of the NYCC proposal. Even large employers who currently offer broad-based retirement plans may not be exempt from the NYC Retirement Program if retirement benefits are not offered to all eligible employees covered by the NYC Retirement Program.

So far, the year 2018 has brought an increasing number of labor and employment rules and regulations. To help you stay up to date, we are pleased to invite you to join our Employment, Labor & Workforce Management Webinar Series. Each month, we will focus on a specific industry, topic, or practice area.

Our July webinar will be hosted by Epstein Becker Green’s Health Employment and Labor (HEAL) strategic service team and Trade Secrets and Employee Mobility service team. This webinar will provide an overview of the legal landscape of non-compete agreements in the health care industry, including state law requirements and restrictions, public policy considerations, recent developments, and expected trends. The webinar will also address key considerations when drafting and enforcing non-competes, engaging in the due diligence process, and integrating providers following a health care transaction.

Tuesday, July 24, 2018
12:00 p.m. – 1:00 p.m. ET

Register for this complimentary webinar today!

Health care registry companies provide families and their loved ones with peace of mind by providing matchmaking and referral services for qualified, pre-screened and vetted home caregivers. They often also provide administrative services. As part of the “gig economy,” health care registries often tread a fine line in classifying caregivers as independent contractors rather than employees. A new Field Assistance Bulletin (“Bulletin”), “Determining Whether Nurse or Caregiver Registries are Employers of the Caregiver,” issued on July 13, 2018, by the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”) to its field enforcement staff, provides a road map on how homecare, nurse, and caregiver registries relying on an independent contractor business model can ensure the caregivers remain independent contractors not covered by the Fair Labor Standards Act (“FLSA”).

Relevant Factors to Maintain an Independent Contractor Business Model

The Bulletin restates the traditional “economic reality” test for determining independent contract staff, under which the WHD considers the totality of the circumstances when evaluating whether an employment relationship exists between a registry and a caregiver. No one factor is necessarily dispositive. It also notes that it historically has maintained that a registry that performs only referral and payroll services is not an employer of the caregivers whom it refers, but a registry that also directs and controls the work and sets the rate of pay may become an employer of the caregiver. The Bulletin then discusses specific business practices that could affect the determination of whether an employment relationship exists. The relevant factors flagged by the WHD and best practices are listed below:

  • Background Checks: Registries can collect objective information such as a caregiver’s criminal history, credit report, licenses, credentials, or background checks pursuant to state or local laws without being designated as employers. However, screening that evaluates subjective criteria, such as interviewing a caregiver or obtaining a caregiver reference to determine likeability or suitability for a particular client, may imply that the registry is an employer.
  • Hiring and Firing: Making the client the ultimate decision maker in hiring and firing the caregiver will help ensure no employment relationship exists between the registry and the caregiver. Thus, a registry that informs its client that a potential caregiver meets the client’s threshold parameters and preferences but leaves the client to decide whether to accept or decline services is not an employer of the caregiver. Conversely, exercising control over hiring and firing decisions, even by terminating the caregiver’s services at the request of a client, may have the opposite effect.
  • Scheduling and Assigning Work: Leaving it to the client and caregiver to independently determine work schedules and assignments avoids triggering an employment relationship. In addition, communicating contact information to selected caregivers (screened by objective criteria such as whether the caregiver can work in a home with pets or smokers) about potential clients also does not indicate an employer-employee relationship. On the other hand, exercising control over the work schedules and assignments, or offering work assignments based on the registry’s own discretion and judgment based on subjective factors such as likeability, may suggest an employment relationship.
  • Controlling the Caregiver’s Work: Controlling, monitoring, supervising or providing instruction on how to provide services, supervising or evaluating work performance, or even just monitoring the caregiver’s methods or work habits may cause a registry to be considered an employer of the caregiver. In addition, exercising control over the caregiver by such actions as limiting the number of clients or hours of work referred to a caregiver or prohibiting the caregiver from seeking work outside the registry may also have the same effect.
  • Setting the Pay Rate: Requiring the client and caregiver to negotiate or determine rates of pay (or if Medicaid sets the rate) avoids creating an employment relationship between the registry and caregiver. A registry may, however, provide advice on typical pay rates in the area to serve as a benchmark for negotiations, or relay offers and counteroffers. On the other hand, the registry acts more like an employer by effectively setting the rate of pay, or dictating what a caregiver should charge for specific services.
  • Continuous Payments for Caregiver Services: Registries seeking to maintain an independent contractor business model should consider charging one-time upfront fees for matching caregivers and clients, or charging fees solely for administrative and ministerial functions such as payroll processing or tax documentation. Conversely, a fee system based on the number of hours a caregiver works indicates the registry’s fees are based on an ongoing relationship and may create employer status.
  • Paying Wages: A registry that provides payroll-related functions for its clients can avoid designation as an employer by transmitting only client-funded payments to the caregiver in the form of pay or benefits (by, for example, issuing checks or electronic deposits) chosen by the caregiver. The registry should avoid issuing direct payments by use of its own funds, even if it expects to be reimbursed by the client. Failing to heed this advice may trigger an employee-employer relationship.
  • Tracking Caregiver Hours: A registry’s reliance on the caregiver and/or client for confirmation of hours by independent submissions of time records will not indicate the registry is the caregiver’s employer. The same is true if the registry requires the client or caregiver to submit correct time records through time sheets or an electronic time verification system provided by the registry. Conversely, verifying, creating, or confirming records of the caregiver’s hours worked may indicate supervision and control, and consequently an employer-employee relationship.
  • Purchasing Equipment and Supplies: Investing in office space, payroll software timekeeping systems and other products to operate the business will not be regarded as forming an employment relationship between caregivers and a registry. Registries can also provide caregivers with an option to purchase discounted equipment or supplies from either the registry or a third party. However, registries should avoid investing in a caregiver’s training or pay for a caregiver’s licenses, insurance or medical supplies, as such actions indicate the registry is acting as an employer, instead of simply a referral service.
  • Receiving Employer Identification Number (EIN) or 1099: Whether registries require an EIN (or a caregiver acquires one), or state law requires insurance or a bond, is irrelevant to a determination of employee status. Calling a caregiver an “independent contractor” or issuing an IRS 1099 form does not preclude the caregiver from being an employee for FLSA purposes.

The Bulletin makes it clear that other factors also may be considered and that all factors will be evaluated in any given case. Nonetheless, a registry that avoids all or most of the factors discussed above that can cause the loss of independent contractor status should have a significant degree of confidence that the WHD will not claim otherwise. At the same time, in addition to complying with the FLSA requirements, employers should also ensure they are complying with other tests, such as those imposed by state agencies that require unemployment insurance contributions, as well as the Federal Internal Revenue Service requirements for independent contractor status.

* Eduardo J. Quiroga, a Summer Associate (not admitted to the practice of law) in Epstein Becker Green’s New York office, contributed to the preparation of this Advisory.

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See also the related article posted on our Wage and Hour Blog.