ACA – Pay or Play Enforcement has arrived

Posted November 14, 2017 by PHaynes

As we reported in our 2nd Quarter Newsletter, the IRS has indicated it would notify applicable large employers (ALEs) in 2017 of their potential penalties for failing to comply with the employer shared responsibility mandate, for the 2015 calendar year.  With the numerous attempts this year to repeal or replace the ACA, ALEs may have thought ACA penalties would never come to fruition, unfortunately that’s not the case.

On Nov. 2, 2017, the Internal Revenue Service (IRS) updated its Questions and Answers (Q&As) on the employer shared responsibility rules under the Affordable Care Act (ACA) to include information on enforcement.  These Q&As indicate that, for the 2015 calendar year, the IRS plans to issue Letter 226J informing ALEs of their potential liability for an employer shared responsibility penalty, if any, in late 2017.

The general procedures the IRS will use to propose and assess the employer shared responsibility penalties are described in the letter.  The IRS will issue a letter to an ALE if it determines that, for at least one month in the year, one or more of the ALE’s full-time employees was enrolled in a qualified health plan for which a premium tax credit was allowed (and the ALE did not qualify for an affordability safe harbor or other relief for the employee).


An ALE will generally have 30 days from the date on the Letter 226J to respond before any employer shared responsibility liability is assessed and notice and demand for payment is made.  Letter 226J will provide instructions for how an ALE should respond in writing, either agreeing with the proposed employer shared responsibility penalty or disagreeing with part or all of the proposed amount.  If an ALE does not respond within the 30-day time frame, the IRS will assess the amount of the proposed employer mandate penalty and issue a notice and demand for payment in the form of a Notice CP 220J. Therefore, any ALE member who receives a Letter 226J must respond in a timely manner.

Once an ALE responds to the Letter 226J, the IRS will reply with one of five different versions of Letter 227. The Letter 227 will be an acknowledgement from the IRS that it received an ALE’s response to the Letter 226J and describe what further action needs to be taken by the ALE.  If after receiving Letter 227, an ALE disagrees with the proposed or revised penalty, the ALE may request a pre-assessment conference with the IRS Office of Appeals.  A conference must be requested by the response date provided in Letter 227, which will generally be 30 days from the date of Letter 227.

All employers need to be on the lookout for the Letter 226J from the IRS. Even if you believe you are in full compliance with the employer mandate you could still receive a Letter 226J and an accurate and timely response is necessary.


  • Maintain complete and accurate records regarding the health insurance coverage offered to employees;
  • Become familiar with the procedures outlined in Letter 226J and the appeals process;
  • Designate a person or persons responsible for addressing the various IRS letters and notices (Letter 226J, Letter 227 and Notice CP 220J);
  • Notify mail room and other applicable staff of the importance of these IRS letters/notices and to whom they should be given upon receipt;
  • Put documented procedures in place so that appeals and conference requests are filed within the required 30-day time-frames;
  • Consult with an attorney who is familiar with the ACA employer mandate provisions, as well as Forms 1094-C and 1095-C.

Links to additional information and resources:

NOTE – Letter 226J is separate from the Section 1411 Certifications that are sent by the Department of Health and Human Services (HHS). The Section 1411 Certifications are sent to ALL employers with employees who receive a subsidy to purchase coverage through an Exchange (including both ALEs and non-ALEs). 

Trick or Treat! Test Your Halloween Knowledge

Posted October 31, 2017 by Megan DiMartino

1. Halloween’s origins come from a Celtic festival for the dead called…
a. Oireachtas na Gaeilge
b. Samhain
c. Bharraigh
d. Saline

2. Which of the following were originally used to carve Jack o’ Lanterns? …could be more than one answer.
a. Beets
b. Oranges
c. Potatoes
d. Turnips
e. Apples
f. Eggplants

3. Jack o’ Lanterns earned their name from the legend of “Stingy Jack,” about a man named Jack tricking the Devil from stealing his soul.
a. True
b. False

4. It is projected that Americans will spend this record-hitting amount on Halloween this year…
a. $898 million
b. $1.9 billion
c. $9.1 billion
d. $11.4 billion

5. If Brach’s laid out the candy corn kernels it sells each year end-to-end, how many times would they wrap around the Earth?
a. 1.75 times
b. 3.6 times
c. 4.25 times
d. 6.3 times

6. From the point to the base, what is the order of colors in a piece of candy corn?
a. Yellow, orange, white
b. Orange, white, yellow
c. White, yellow, orange
d. White, orange, yellow

7. According to superstition, what does it mean if you see a spider on Halloween?
a. The spirit of a loved one is watching over you
b. There will be misfortune
c. There are witches nearby
d. Money will be coming your way

1. b. Samhain – (pronounced SAH-win) is a festival marking the end of the harvest season and the beginning of winter or the “darker half” of the year, celebrated Oct. 31 – Nov. 1. Celts believed that ghosts of the dead roamed Earth on this holiday, so people would dress in costumes and leave “treats” out on their front doors to appease the roaming spirits.
2. a, c & d. Beets, Potatoes & Turnips – Irish carved scary faces into these vegetables to scare away spirits of the night.
3. a. True – The legend of “Stingy Jack” is quite interesting. Check it out!
4. c. $9.1 billion – This breaks down to $3.4B spent on costumes, $2.7B spent on candy, $2.7B spent on decorations, and $.4B spent on greeting cards.
5. c. 4.25 times – Candy corn was invented in the 1880s by George Renninger, an employee of the Wunderle Candy Company in Philadelphia. It was originally called “Chicken Feed” with a slogan that read “Something worth crowing for.”
6. d. White, orange, yellow
7. a. The spirit of a loved one is watching over you – There are many superstitions revolving around spiders, both good and bad. But in many countries, they are regarded as mystical creatures due to their web-making abilities. In folklore, they are described as storytellers and oracles of fate, wealth, and sometimes death.

Have a happy and safe Halloween!

Huffpost | 8 Super Weird Things You Didn’t Know About Halloween
NRF | Halloween Headquarters
Mental Floss | 25 Fun Size Facts About Classic Halloween Candy
USA Today | Halloween fave: 10 spookily sweet candy corn facts
deBugged | Spiders: A Web of Superstitions on Halloween

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

IRS Announces 2018 Contribution Limits for 401(k)s, FSAs, and More

Posted October 20, 2017 by Megan DiMartino







IRS has announced the 2018 cost-of-living adjustments (COLAs) with respect to retirement plan limits. Many limits, which are adjusted by reference to Code Sec. 415(d), are changed for 2018 since the increase in the cost-of-living index met the statutory thresholds that trigger their adjustment. However, others remain unchanged. Certain dollar limit changes keyed to Code Sec. 1(f)(3), some of which were previously calculated by Thomson Reuters Checkpoint editors, have also increased. IR 2017-177; Notice 2017-64, 2017-45 IRB.

Complete list of contribution changes:


  • Annual contribution limit – changes to your election can be made any time during the year
    • 2017 – $18,000
    • 2018 – $18,500
  • Catch-up limit
    • 2018 – stays the same at $6,000 for employees age 50+

SEP IRAs and Solo 401(k)s

  • Contribution limits for self-employed and small business owners
    • 2017 – $54,000
    • 2018 – $55,000

After-tax 401(k) contributions

  • 2018 – $55,000 (overall cap, including the $18,500 (pre-tax or Roth) salary deferrals plus any employer contributions (but not catch-up contributions))

SIMPLE retirement accounts

  • 2018 – stays the same at $12,500, as well as the same catch-up limit of $3,000

Defined benefit plans

  • 2017 – $215,000
  • 2018 – $220,000

Transportation and parking benefits – for transportation in a commuter highway vehicle or any transit pass, as well as qualified parking

  • 2017 – $255
  • 2018 – $260

Health FSA

  • 2017 – $2,600
  • 2018 – $2,650

IRS Rev. Proc. 2017-58
IRS Notice 2017-64

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Our Comprehensive On Demand Benefits Webinar Library

Posted October 20, 2017 by admin

Employee Benefits Webinars





If you haven’t taken advantage of our comprehensive Employee Benefits Webinar Library, you’re missing out on dozens of important webinars on topics like:

  • Voluntary Benefits – Choosing the Right Fit
  • Understanding the Intricacies of PBM Contracts, Language, & Opportunities
  • Change That Sticks: Holistic Benefit Communications for Better Acceptance & Higher Uptake
  • Violence in the Workplace in 2017 – Are You Protected
  • There’s an App for That? Features that Can Empower Healthcare Consumers

And many more! View them here:

There is no cost to view these educational webinar, just create a login and view as many as you like. They are open to all HR professionals, but not other agents, brokers, TPAs, etc.

HRCI & SHRM Pre-Approved Crawford Advisors Webinar | 2018 Open Enrollment: Top 12 Critical Mistakes to Avoid this OE Season

Posted October 17, 2017 by Megan DiMartino

Join Crawford Advisors’ General Counsel and VP of Compliance, Patrick Haynes, and AssuredPartners’ VP of Compliance, Caroline Smith, for this HRCI* and SHRM** pre-approved, complimentary, one-hour webinar as they review the top 12 critical mistakes to avoid during your 2018 open enrollment.

Topics include:

  • Failure to Communicate
  • Neglecting Technology
  • Cutting Corners
  • Limited Enrollment Options
  • Unused Benefits
  • And More!

Mistakes may be inevitable, but missing out on this important webinar doesn’t have to be one of them!

Webinar Details:

  • Thursday, October 26, 2017
  • 2:00 – 3:00pm EDT
  • No cost to attend
  • This webinar is open to all HR and Finance Professionals, but not to brokers, agents, TPAs and PEOs.

*The use of this seal confirms that this activity has meet HR Certification Institute’s (HRCI) criteria for recertification credit pre-approval. This activity has been approved for 1 HR (General) recertification credit hours toward aPHR, PHR, PHRca, SPHR, GPHR, PHRi, and SPHRi recertification through HRCI.

**Crawford Advisors is recognized by SHRM to offer Professional Development Credits (PDCs) for SHRM-CP or SHRM-SCP. This program is valid for 1 PDC for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Sexual Harassment Has No Place in the Office, But Most Importantly, Has No Place At All

Posted October 13, 2017 by Megan DiMartino

Most everyone is likely aware of the headlines in the news as of late regarding U.S. film producer, Harvey Weinstein, and his unwarranted sexual advances and harassment toward a countless number of women. This isn’t the only instance within the Hollywood industry, or within the world, or even among just women.

Sexual harassment has no place to be taken lightly. A recent study found that 1 in 3 women between the ages of 18-34 have been sexually harassed at work. And in 2013, a study found that over 17% of the EEOC sexual harassment charges filed were filed by men. You need to be aware of what constitutes as sexual harassment, how to report it, and how to be an ally when witnessing it.

What is sexual harassment?

Per the U.S. Equal Employment Opportunity Commission (EEOC), “It is unlawful to harass a person because of that person’s sex. Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”

To better understand and identify acts of sexual harassment, here are some examples:

  • Sharing sexually inappropriate images or videos, such as pornography, with co-workers
  • Sending suggestive letters, notes, or e-mails
  • Displaying inappropriate sexual images or posters in the workplace
  • Telling lewd jokes, or sharing sexual anecdotes
  • Making inappropriate sexual gestures
  • Staring in a sexually suggestive or offensive manner, or whistling
  • Making sexual comments about appearance, clothing, or body parts
  • Inappropriate touching, including pinching, patting, rubbing, or purposefully brushing up against another person
  • Asking sexual questions, such as questions about someone’s sexual history or their sexual orientation
  • Making offensive comments about someone’s sexual orientation or gender identity

The list could go on and on, but these are some top examples of sexual harassment. But it should be known that any sexual action that creates a hostile work environment is considered sexual harassment. The victim may not be just the target of the offense, but anyone who is affected by the inappropriate behavior.

What to do if sexually harassed?

If you feel like you’ve been sexually harassed, first report it to your Human Resources department. Take detailed notes of the date(s), time(s), and nature of the incident(s). Your employer should then intercept and remedy the situation, but should that fail and if the employee continues to persist with their inappropriate behavior, then a claim should be made with the EEOC. You must file your claim with the EEOC within 180 days of the incident by mail, in person, or by calling 1-800-669-4000.

If you see something, say something – to the victim.

It’s probably been ingrained in your brain that if you see something, then you need to say something. Which, that’s absolutely correct, but in sexual harassment incidences, talking to the victim is key. They’re the one that has been sexually harassed, they’re the one dealing with the emotions of what happened, and they’re the one that needs to bring light to the situation.

Sexual harassment is not be downplayed or minimized, so if you see something, say something to the victim. Show support, create a safe environment, lend an ear, and just be there. Encourage them to go to their supervisor to report the sexual harassment so these lewd acts can be stopped for not only that victim, but anyone else that may have been affected.

Speak up and speak out.

The Daily Dot | How to be a good workplace ally when you see sexual harassment
Atlantic | Stats Say THIS Is Still Too Common in the Workplace
Psychology Today | When Men Face Sexual Harassment
The Balance | Examples of Sexual and Non-Sexual Harassment
EEOC | How to File a Charge of Employment Discrimination

Photo Credit: | Jad Limcaco

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Large Employers Aren’t the Only Ones Dealing with FMLA Claims

Posted October 9, 2017 by Megan DiMartino

The Family and Medical Leave Act (FMLA) is applicable to employers with 50 or more employees, so when it comes to small employers, they never really give it any thought. This doesn’t mean smaller employers are off the hook from any employee legal allegations though. In Tilley v. Kalamazoo County Road Commission, the small employer was at fault for telling an employee they were eligible for protected leave when the employer did not meet the requirements of FMLA.

To meet the requirements for FMLA, an employee must meet the following criteria:

  1. they have been employed by a covered employer for 12 months;
  2. they have worked for 1,250 hours during the 12-month period before their requested leave begins; and
  3. they work at a location where their employer employs 50 or more employees within a 75-mile radius of that location.

But in the Tilley v. Kalamazoo case, the employer’s policy failed to mention anything regarding the requirement that 50 or more employees must work within 75 miles of the specified work location. So the employee filed a claim against their employer under the FMLA after he was terminated for missing work for his serious health condition.

Tilley filed age and FMLA discrimination charges against his employer, but the age discrimination was thrown out since the employer claimed to have fire him due to his inability to submit work on time. But the FMLA charge is a whole other issue. The District Court granted summary judgement for the employer on the basis that the employee was not eligible for FMLA leave, but the Sixth Circuit Court of Appeals reversed this decision. The Appellate Court stated that since the explanation of the 50 or more employees within a 75-mile radius was omitted that a “reasonable person in the employee’s position could fairly have believed that he was protected by the FMLA.” The Court did however allow the FMLA claims to be heard by a jury even though he was not eligible for protected leave under the law.

Equitable estoppel was applied, which prevents a party from asserting a legal claim or defense that is inconsistent with his or her prior action or conduct. So in FMLA context, equitable estoppel prevents an employer from defending an FMLA case by arguing that the employee is not entitled to leave when the employer previously misrepresented to the employee that they were.

The Sixth Circuit stated that since the employer granted the employee FMLA rights, even though they did not have to, that they could not take back those FMLA rights that were already granted.

The following are scenarios that employers need to be aware of in regards to FMLA misrepresentation:

  • Company miscalculates number of employees in approving FMLA request.This may be difficult when dealing with temporary or seasonal employees, so it is important to understand who qualifies as an “employee” under FMLA.
  • Company miscalculates total number of hours worked in the previous 12-month period.An accurate time-keeping system is crucial for not only calculating FMLA hours, but for calculating FMLA eligibility.
  • Company with more than 50 employees that also has a distant satellite location.An employee in a small satellite location may not be eligible even if the employer has over 50 employees. The requirement is location specific, so the 50 or more employees need to be within 75 miles of that location.
  • Employer with less than 50 employees offers discretionary leave.Small employers often offer leave of absences for employees to deal with their own serious health issues. This needs to be made clear to employees so they realize it is not covered by FMLA.

Review your policies and procedures, clearly state the requirements, and make sure that all personnel fielding FMLA requests are trained and qualified to do so.

Source: vonBriesen | FMLA – Not Just A Large Employer Concern

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Working from Home – Is it a Necessary Option?

Posted September 29, 2017 by Megan DiMartino

Working from home has become quite the luxury and invaluable benefit that many employees have come to know and love. MRINetwork 2017 Recruiter Sentiment Study polled 265 MRINetwork executive recruiters worldwide, along with 100 employers and 263 candidates across the U.S., and found that 68% of recruiters and 53% of employers state that job candidates expect to work remotely somewhat often to very often. One MRINetwork recruiter is quoted, “Providing people with the opportunity to work remotely – whether full-time or a few days a week – allows you to access a larger talent pool, while offering flexibility to those who don’t want a long commute, or simply just need to be more accessible to their families.”

Working remotely provides a work-life balance that many candidates are asking for as part of their top requirements when searching for jobs. Over half of those surveyed say that having a work-from-home option is somewhat to extremely important when considering new jobs. Another recruiter states, “In-demand candidates have choices. The more specific or rare their skill set is, their options increase, especially if they work in a field where competition for candidates is fierce. If they don’t want to relocate or work five-day weeks in an office environment, they may turn down a solid offer if they can’t work remotely.”

But with that being said, larger companies are wanting to reel their remote workers back into the office to increase collaboration, creativity, mentoring and innovation. The intent is commendable, but compromise through advancing technology needs to be made. Nancy Halverson, GM for MRINetwork, says, “The work environment and culture have to support and encourage working together, sharing ideas and rewarding innovative thinking. The ability to work from home is here to stay. Collaboration and innovation are vitally important, but technology is continually advancing, empowering remote workers to be indispensable contributors to their in-office teams. Ultimately, smart employers will find their workforce is stronger and more effective when it creates an environment generating productivity from both work-from-home and in-office workers.”

Source: Wolters Kluwer | Employers look to reduce work-from-home options, but job candidates not on board

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

More Employers Requiring Same-Sex Couples to Marry to Receive Benefits

Posted September 27, 2017 by Megan DiMartino

More employers are requiring same-sex couples to marry to receive health care benefits after the 2015 Supreme Court ruling to legalize same-sex marriage. The International Foundation of Employee Benefit Plans revealed that three in ten employers will be eliminating same-sex domestic partner benefits.

The year prior to the Supreme Court ruling, employers reported that:

  • 51% provided benefits to same-sex partners in civil unions
  • 59% provided benefits to same-sex domestic partners
  • 79% provided benefits to same-sex spouses

The year after the Supreme Court ruling, employers reported that:

  • 31% are providing benefits to same-sex partners in civil unions (down 20% from 2014)
  • 48% are providing benefits to same-sex domestic partners (down 11% from 2014)

At the same time, the larger companies (10,000 or more employees) are more likely to continue offering same-sex domestic partner benefits and most employers (86%) are providing benefits to same-sex spouses, which is an increase of 7% from 2014. Offering the same coverage to same-sex couples and opposite-sex couples makes it fair, consistent and an easier task for administrators.

Julie Stich, CEBS, Associate VP of Content at the International Foundation states that she “wouldn’t expect all employers to drop the domestic partner benefits” though. “Competitive employers are always working to provide an inclusive benefit package, and offering domestic partner benefits can build a culture of inclusion and help the company attract the best talent.”

Source: International Foundation of Employee Benefit Plans | Employers Dropping Domestic Partner Benefits

Employee Benefits Survey: 2016 Results
Domestic Partner Benefits After the Supreme Court Decision: 2015 Survey Results
Employee Benefits for Same-Sex Couples: The DOMA Decision One Year Later

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Determining if Your Business is an ALE for Reporting & Penalty Purposes

Posted September 22, 2017 by Megan DiMartino

Unfortunately, the Affordable Care Act’s employer reporting and shared responsibility penalties have not been repealed, like many hoped. So small businesses that have grown in 2016 to fifty or more full-time/full-time equivalent employees have crossed over to an Applicable Large Employer (ALE) status and are subject to 2017 reporting and penalties.

5-step process to determine if your business is an ALE:

  1. For each month in 2016, count the number of employees who were employed to work, on average, at least thirty hours per week. This includes all full-time common law employees (including seasonal employees) who work for all entities treated as part of the same controlled group or affiliated service group.
  2. For each month in 2016, add the total number of hours for all other employees not counted in step one and divide each monthly sum by 120 – this will give you the number of full-time equivalent employees for each month.
  3. Add the monthly results of steps one and two to obtain the sums of each month of 2016.
  4. Average the monthly sums by adding them up and dividing by twelve (do not round up). If the result is less than fifty, then you’re not an ALE.
  5. If the result of step four is fifty or more, then you’re an ALE. BUT, if you had more than fifty employees for no more than four months during 2016 and you exceeded fifty in those months because you had seasonal employees, then you may not be considered an ALE.

Employer penalties to consider if you crossed the threshold status to ALE status:

  • Penalty A – if group health coverage was not offered to at least 95% of your full-time employees, and their children, and a full-time employee purchases subsidized Marketplace coverage for any given month, the employer will be subject to a penalty equal to $188.33 per full-time employee in excess of 30 for that month.
  • Penalty B – if group health coverage was offered to at least 95% of your full-time employees, and their dependents, and a full-time employee declined and instead purchased subsidized Marketplace coverage for any given month, the employer will be subject to a penalty for that month equal to the lesser of the Penalty A amount or $282.50 for each full-time employee with subsidized Marketplace coverage. An employee is able to purchase subsidized Marketplace coverage if they were not offered group health coverage that meets the minimum value and affordability tests by their employer.

Source: Jackson Lewis | Crossing the Threshold – Small Business to “ALE”

IRS Reporting Resources
Marketplace Coverage
Minimum Value & Affordability Tests

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

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