Verifying Employees’ FMLA Use to ‘Care For’ Their Family Members

Posted June 16, 2017 by Megan DiMartino

The Family and Medical Leave Act (FMLA) allows for eligible employees to take leave to “care for” a family member such as their son, daughter, spouse or parent that suffers from a serious health condition. Even if an employee has a family member that suffers from a serious health condition, it can’t just be assumed that the employee is “caring for” them.

Caring for a seriously ill family member would include such situations where “the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor.” As well as “providing comfort and reassurance [that] would be beneficial to a child, spouse, or parent with a serious health condition who is receiving inpatient or home care.” Performing household or landscaping chores would not generally count as “caring for,” except in limited circumstances.

To prevent being scrutinized by the court, you need to obtain detailed information regarding FMLA leave and evaluate whether your employee is truly providing care for an ill family member or just using it for a chance at an extra getaway.

Gathering the facts:

  • Ask the employee the primary purpose of their leave: Just saying they’re visiting a sick family member doesn’t cut it. You need to be asking who it is that they’re caring for so you can determine if that falls under the FMLA regulations.
  • Ask how they will be providing care: Asking how your employee will be providing care to their family member will help you understand whether they are providing physical or psychological care or both. FMLA regulations encompass both forms of care, but sometimes the analysis for each type is different. The employee doesn’t have to be the only one providing care for their family member.
  • Ask where the family member is located or where the care will be provided: These two locations are not always the same. Employees are more likely to qualify for FMLA if they are in close contact with the ill family member. So most times, having telephone conversations with your ill family member is not sufficient enough. But talking to another family member or the ill family member’s physician about medical decisions is enough to suffice as providing care in some circumstances.
  • Ask if they are substituting for another care provider: If the employee is substituting for the normal care provider or the ill family member is making arrangements for a change in care, then that would fall under the “caring for” requirement. It’s good to note that if the employee is caring for an unconscious or unresponsive family member that is under the care of qualified medical staff, that they are still covered under FMLA. The employee may be providing psychological comfort and support as well as managing the ill family member’s medical decisions.

So to wrap up, ask these critical questions to ensure your employees are utilizing FMLA correctly and to curb fraud and abuse. Make sure to consult with your labor and employment attorney to determine if the “care for” element has been satisfied based on the facts you have carefully and thoroughly obtained from your employee.

Source: HR Daily Advisor | FMLA: How to Verify That Employees Are Truly ‘Caring For’ Family Members

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 Reduces Affordability Percentages for 2018

Posted June 12, 2017 by PHaynes

In Revenue Procedure 2017-36, the IRS announced that for plan years beginning on or after January 1, 2018, employer-sponsored health plan coverage will be considered affordable if the employee’s required contribution for self-only coverage does not exceed 9.56% of the employee’s household income for the year (down from 9.69% for 2017). This percentage is considered for both the ACA’s employer shared responsibility or “pay or play” rules and premium tax credit eligibility. For purposes of an individual mandate exemption, the cost of coverage must not exceed 8.05% of an employee’s household income for the year (down from 8.16% for 2017) (adjusted under separate guidance).

This is the first time since the implementation of the ACA rules that the affordability contribution percentages have been reduced.

As a reminder, the employer shared responsibility rules generally require applicable large employers (ALEs) to offer affordable, minimum value health coverage to their full-time employees (and dependents) or pay a penalty. ALEs determining whether the coverage they offer is affordable may continue to use one of three affordability safe harbors to make this determination and try to prevent penalties. The three safe harbors measure affordability based on Form W-2 wages, the employee’s rate of pay or the Federal Poverty Line (FPL) for a single individual.

As you are determining your employee contributions for the 2018 plan year, keep in mind this new reduced percentage. For those who have already determined your employee contributions for next year, please review your rates to determine if adjustments need to be made.

Please contact your Account Manager or Account Executive for additional assistance.


Prior guidance/Links:

3 Simple Ingredients to Help Your Millennial Employees Flourish

Posted June 12, 2017 by Megan DiMartino

We all desire to feel appreciated at work in some way or another, whether it’s a quick “good job!” in passing, an HR-appropriate pat on the back, or a company-wide recognition. These are all things that your boss or company should be doing regardless of generation, but it seems to be more essential in the mental, physical and life-affirming well-being of our youngest workforce…the millennials.

Millennials may be entitled, impulsive and pampered, but they are also ambitious, fearless, and progressive. They are paving the way for a bolder and brighter future and we need to encourage them instead of putting them down. The older generations have created this new generation, so we need to continue to push and mold them into the successful leaders they feel they can be.

Here are three ingredients you need to keep your millennials alive and well:

  • In-house opportunities: Millennials have a sense of self-worth and need their work to mean something in their life. Aside from their salary and work/life balance needs, millennials’ desire for opportunities to progress and to be leaders. Show them the ways and what it takes to rise up.
  • A fair shake: Even though millennials look a bit more brittle and sensitive, they do know when you’re patronizing them and not treating them fairly. They want to be treated as equally as you would your more seasoned workers. They’re willing to work hard and leave their footprint, but don’t want to be shortchanged in the process.
  • Recognition, when it’s warranted: Millennials are known for their sense of entitlement and need for affirmation, but if you take a look around you’ll find that even your more tenured employees are exactly the same. Employees, including millennials, know when they’ve done well and are making a difference, so recognize and reward ALL well-deserved accomplishments…no matter how big or small!

Source: Business Management Daily | 3 things millennial employees need to excel in your workplace

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.

Governor Vetoes Maryland Paid Sick Leave Law in Hopes of a Fair Act

Posted June 7, 2017 by Megan DiMartino

Governor Larry Hogan vetoed the Maryland Healthy Working Families Act (the “Act”) on May 25, 2017, that was passed by the Maryland General Assembly. The Act would have required employers with 15 or more employees to provide them with 40 hours of paid sick and safe leave annually beginning on January 1, 2018, while smaller employers, with 14 or less employees, would have been required to provide 40 hours of unpaid sick and safe leave annually.

Governor Hogan called the Act “an irresponsible piece of legislation that unfairly penalizes the hundreds of thousands of hard working men and women who own and operate small businesses in our state.” He also stated that the Act is “a complicated, broad, and inflexible proposal” and is pushing for “a common sense paid sick leave policy that is fair, bipartisan, and balanced.”

The Maryland House of Delegates and Senate passed the legislation with enough votes to override such a veto, so Maryland lawmakers will most likely not have the opportunity to override the veto until next year’s legislative session. House Speaker, Michael E. Busch, said that the veto override will be a priority at the next General Assembly in January.

Source: Proskauer – Law and the Workplace | Maryland Governor Vetoes Paid Sick Leave Law

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.

Vapooling Benefits and the 80/50 Rule

Posted June 6, 2017 by Megan DiMartino

Question: Some of our employees have organized carpools to commute to work, and we provide those carpools with parking benefits under our qualified transportation plan. Could our transportation plan also reimburse those employees for all or a portion of their other commuting costs as a vanpooling benefit? All of the carpools use employee-owned vehicles and some of those vehicles are quite large (ex: minivans and SUVs).

Answer: It is possible, but under very certain circumstances. To start, “vanpooling” means transportation between the employee’s residence and their place of employment in a commuter highway vehicle, which must have a seating capacity for six or more adults (not including the driver), and at least 80% of the vehicle’s annual mileage must be used for said vanpooling means. To make things sound more difficult, commuting miles count toward the 80% only if the number of employees transported to or from work is at least half of the vehicle’s adult seating capacity (not including the driver). This is referred to as the “80/50 rule.” For example, if the vehicle is carrying six passengers (not including the driver), at least three of them have to be employees in addition to the driver for the commuting miles to count toward the 80% requirement.

While many family-owned vehicles have the capacity capabilities needed to qualify it as a vanpooling vehicle, it is generally unable to satisfy the 80% usage requirement. So many employers don’t offer vanpooling benefits to employee-owned vehicles as it is difficult to determine if they meet the requirements. Instead, some employers provide high-seating capacity vehicles specifically for vanpooling which makes it more likely that the requirements are met.

Another way that vanpooling benefits can be used is if employees use private or public transit-operated vanpools, which are not subject to the 80/50 rule. Private or public transit-operated vehicles are either owned and operated by public transit authorities or by any person which is in the business of transporting people for hire.

Source: Thomson Reuters | Can a Qualified Transportation Plan Reimburse Employees’ Expenses for Carpooling With Their Own Vehicles?

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.

HRCI & SHRM Pre-approved AssuredPartners & Crawford Advisors Webinar | Straight from the Department of Homeland Security: Insight into the Form I-9 and E-Verify

Posted May 25, 2017 by Megan DiMartino

The U.S. Department of Homeland Security is committed to the best customer service and transparency in the management of Form I-9 and E-Verify. Please join us for this HRCI* and SHRM** pre-approved, one-hour, complimentary webinar as our speaker, Henry W. Nash, Jr., Management Program Analyst from the DHS, presents a review of recent changes and new resources available to assist employers with the employment eligibility verification process. Even the most ‘seasoned’ business professionals will walk away from this presentation with something new. This is a rare opportunity to learn from the expert, so come prepared with any questions or concerns you may have related to the Form I-9 or E-Verify.

Topics include:

  • Resource Service Information
  • Employer Verification Process
  • Completing Form I-9 (Sections 1-3)
  • Storage & Retention
  • E-Verify Overview Process

Webinar Details:

  • Thursday, June 8, 2017
  • 2:30 – 3:30pm EDT
  • No Cost to Attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs.




About our presenter:

Mr. Harry “JR” Nash joined the Department of Homeland Security, United States Citizenship and Immigration Services on August 29, 2011. He is assigned to the Public Relations and Education Section of the Outreach Branch which falls under The Immigration Records & Identity Services Directorate. Mr. Nash’s highly decorated and successful professional career also includes 28 years of honorable active military service in the United States Army. Mr. Nash has served as a First Sergeant and the Senior Enlisted Advisor for five (5) U.S. Army medical headquarters command organizations before retiring in January 2007. Additionally, he has served as a Senior Program Specialist for the Federal Emergency Management Agency (FEMA) from 2008 to 2011.

*The use of this seal confirms that this activity has met 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.

Well, Isn’t it Ironic?

Posted May 23, 2017 by Megan DiMartino

The U.S. Equal Employment Opportunity Commission (EEOC) is currently suing their staffing company, Diverse Lynx, for age discrimination. In the words of Alanis Morissette…”Isn’t it ironic, don’t you think?”

Diverse Lynx, a Princeton, NJ-based IT staffing firm, failed to refer a job applicant based on his age. The EEOC’s lawsuit is based on learning that Diverse Lynx sent the applicant an email stating that he was no longer being considered for the job because he was “born in 1945” and that “age will matter” in regards to the position.

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination based on age, which also includes discrimination in referrals by employment agencies.

The EEOC’s New York District Director, Kevin Berry, stated “The firm told the man, ‘age will matter.’ Actually, the only things that matter are abilities and qualifications, and the EEOC is here to help make sure that’s the way it is in American workplaces.”

To follow more on the lawsuit: EEOC v. Diverse Lynx, Civil Action No. 17-cv-03220

Age Discrimination in Employment Act (ADEA)
The ADEA forbids age discrimination against anyone age 40 or older. Anyone under 40 is not protected under the law, although some states do have laws protecting those younger individuals against age discrimination.

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

It is also unlawful to harass a person based on their age. The law doesn’t prohibit teasing, offhand comments, or isolated comments, but it does become serious if the harassment is frequent or so severe that it creates a hostile work environment or when it results in adverse employment decisions, such as the victim getting fired or demoted.

EEOC | EEOC Sues Its Staffing Company Diverse Lynx for Age Discrimination
EEOC | Age Discrimination

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.

How Long to Maintain Company Personnel Records

Posted May 19, 2017 by Megan DiMartino

You may think you’re keeping yourself safe by saving all company personnel files, but to be honest, you could be doing more harm than good.

The Federal Trade Commission requires that you remove and securely dispose of certain data on job applicants’ records within a certain timeframe. So your “safe keeping” could potentially cost you a lawsuit or more.

To truly keep yourself safe, inventory your records and create a company retention schedule. It is necessary to know what documents and information you have and how long you should keep it – legally and for business purposes – before you’re able to put an efficient records system in motion.

Some things to keep in mind:

  • Don’t be a “just in case” hoarder; store records only for legal, operational or archival reasons.
  • Retain and destroy documents systematically.
  • Segment records according to a retention timetable.
  • Don’t retain unscheduled temporary materials, such as drafts, reminder notes, worksheets, or extra copies.
  • Don’t hang onto documents just for their sentimental or public relations value. Information must earn its keep, like any other asset. A comprehensive record of the past that fosters a “company memory” can be an asset, but be sure to minimize your legal liability while doing so.

Sometimes laws don’t state a specific retention period. Statutes and regulations can often contain a phrase, “The following records shall be maintained…,” but never mention a retention period. This can be taken as the records need to be maintained permanently.

What to do?
The Uniform Preservation of Private Business Records Act (UPPBRA) states that whenever a law does not specify a specific retention period then the business should keep their records for three years. If destroyed before then, you could be subjecting your company to legal problems. As of now, there are only eight states following this policy or something equivalent.

Source: Business Management Daily | Company records: What to keep and for how long

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.

Update: House of Representatives Allows for Comp Time in Lieu of Overtime Pay

Posted May 18, 2017 by Megan DiMartino

As we discussed back in our April 18 blog, Congress was mulling over the Working Families Flexibility Act of 2017 which would allow employees the option to choose comp time in lieu of overtime pay. Well, as of May 2, the House of Representatives have voted to allow most employers to offer this option to their nonexempt employees.

This now allows employees of organizations that are choosing to offer comp time to either bank one-and-a-half hours of unpaid leave per hour of overtime worked or take the usual time-and-a-half of overtime pay.

Hurdles and Solutions
As this is a great solution for employees that often struggle balancing work and family, there is fear that employers will try to coerce their workers into accepting comp time instead of overtime pay. But the bill has been worked to address this by allowing employees to cash out banked comp time. Employers would have 30 days following an employee’s request to pay out the value of their banked comp time.

The bill lets employees bank up to 160 hours of comp time within a year, but employers would be allowed to require employees to accept overtime pay after they have accumulated 80 hours of comp time. Employees can carry over their previous year’s comp time, but only up until January 31. After that, employers would pay out the value of the leave.

Also, in the bill it is stated that employers are banned from “intimidating, threatening, or coercing or attempting to intimidate, threaten, or coerce an employee” into taking comp time instead of overtime pay.

Source: Business Management Daily | House approves comp time instead of overtime pay

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.

D.C. Law Bans Request for Credit Information During Background Checks

Posted May 16, 2017 by Megan DiMartino

Credit checks have been part of comprehensive employment background checks for quite some time, but D.C. is now prohibiting the use of any credit information pertaining to prospective and current employees.

Credit information is broadly defined as any information which is written, oral, or any other communication on an employee’s creditworthiness, credit standing, credit capacity, or credit history.

The Fair Credit Reporting Act (FCRA) requires employers utilizing credit reporting agencies to adhere to a number of notice and consent requirements. But as of March 17, 2017, the Fair Credit in Employment Amendment Act does not allow D.C. employers to:

  • Require, request, suggest or cause any employee or applicant to submit any credit information;
  • Use, accept, refer to or inquire about credit information, unless an exemption from the law applies; or
  • Take any discriminatory action against prospective and current employees based on their credit information.

There are only a few circumstances where the law exempts certain positions:

  • Positions with financial institutions where the position involves access to personal financial information;
  • Positions where the employer is required by D.C. law to collect credit information;
  • Some positions within the D.C. government, such as those in the office of the D.C. Chief Financial Officer;
  • Positions that require security clearance under D.C. law; and
  • Situations where an employer receives credit information through a subpoena, court order, or law enforcement investigation.

Applicants or employees may file complaints with the D.C. Commission on Human Rights if they feel there have been violations of the law, just like D.C.’s 2014 Ban-the-Box law. This could impose monetary penalties from $1,000 to $5,000, based on the number of violations. But unlike Ban-the-Box, applicants or employees can also pursue a claim in court.

What Should D.C. Employers Do?

  • Contact your background check vendors to remove all credit information inquiries from the onboarding process for applicants and employees in the District;
  • Remove all questions regarding credit history and any that would elicit credit information from your job applications, background check authorization forms, and any general employee information forms; and
  • Consider adding a policy to your employment handbooks regarding the law and that you will not inquire about, use or discriminate based on any credit information, as well as training HR and any individuals that interview about the new law’s prohibitions.

Source: Foley & Lardner LLP | Is Your Background Check Too Broad? New D.C. Law Bans Requests for or Use of Credit Information 

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.

Subscribe to Our Blog