HR Strategies, LLC
Monthly Strategies
State Enacts Volunteer
Emergency Responders Job
Protection Act
By Duane Morris
On September 6, 2013, Delaware Gov. Jack Markell
signed into law the Volunteer Emergency
Responders Job Protection Act, a measure designed
to ensure that volunteer emergency responders are
protected from discrimination by their private
employers.
The act protects "volunteer emergency responders,"
defined as volunteer firefighters, emergency
medical technicians and fire police officers, from
adverse employment actions resulting from their
service as a volunteer. Specifically, the act prohibits
employers from terminating, demoting or otherwise
disciplining a volunteer emergency responder who
is absent from the workplace in connection with
volunteer emergency services (e.g., acting as a
volunteer emergency responder with respect to a
governor-declared state of emergency for up to
seven consecutive days, acting as a volunteer
emergency responder with respect to a presidentdeclared national emergency for up to 14
consecutive days or receiving treatment for injuries
sustained performing volunteer emergency
services). The act applies to employers of 10 or
more employees, but does not clarify whether those
employees must be located in Delaware.
Accordingly, until this issue is clarified further by
the courts, employers with at least 10 employees in
the aggregate nationwide (of which at least some
are employed in Delaware) should comply with the
act.
The act contains safeguards for private employers,
imposing a duty on the volunteer emergency
responder to notify the affected employer in
accordance with the employer's existing policies
that the employee may be absent from his or her
place of employment in connection with the
Volume 10, Issue 11
November 1, 2013
volunteer emergency services listed above. In
addition, employers may seek a written statement
certifying that the employee is in fact providing
volunteer emergency services or receiving
treatment. In the former case, the employee must
furnish, within seven days of the employer's
request, a written statement signed by the individual
in charge of the volunteer department, which states
that the employee responded to an emergency; the
date and time of the emergency; and the date and
time such employee completed his or her volunteer
emergency activities. In the latter case, the
employee must furnish, within five days of the
employer's request, a written statement signed by a
medical professional, which states that the
employee was seen by such medical professional;
the dates of treatment; and the estimated period of
partial or total incapacity. In addition, employers
are permitted to subtract from the employee's
earned wages any time such employee is away from
the workplace for events covered by the act.
An employee who is wrongfully terminated,
demoted or disciplined in violation of the act may,
within one year after the date of violation, bring an
action for reinstatement, back pay, attorneys' fees
and cost of suit.
The act's protections do not apply to essential state
employees, members of the armed forces and
National Guard, employees of a hospital licensed
pursuant to Delaware Code, Title 16, Ch. 10, and
employees of public utilities who are necessary to
maintain the integrity of networks, facilities or
assist first responders. Moreover, employers with
"substantially similar policies or rules that provide
the same or substantially similar protections" are
not governed by the act.
Gov. Markell also signed companion legislation to
add volunteer emergency responders to the
categories of individuals protected from
discrimination in employment. Specifically, the act
states: “It shall be an unlawful employment practice
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for an employer to discriminate in the hiring or
discharging of an individual because of such
individual's membership in a volunteer emergency
responder organizer. This section shall not prevent
an employer from taking otherwise lawful actions
regarding hiring, discharging or requiring
attendance of such individual.”
Employers in Delaware may want to review their
employment policies and handbooks to update them
to address this development related to volunteer
emergency responders. Additionally, employers
should educate managers, supervisors and hiring
personnel on the parameters of this new law.
Six Steps to Prepare for the
Affordable Care Act
Given the current composition of Congress, it is
unlikely employers’ obligations under the
Affordable Care Act (ACA) will be significantly
curtailed by Jan. 1, 2014, when many provisions go
into effect. Employers should formulate and
commence their action plans now by taking the six
steps described below.
1. Recognize that many of the ACA’s requirements
become effective on Jan. 1, 2014.
Many of the ACA’s provisions are effective on Jan.
1 or, for fiscal year plans, the first day of the plan
year following Jan. 1. For example, lifetime and
annual benefit limitations and plan provisions
providing for exclusion of coverage for pre-existing
conditions are not permitted after Jan. 1, 2014.
Certain preventive service benefits must be offered
through most group health plans, and
nondiscrimination rules for fully insured plans are
effective in 2014.
Prior to the Jan. 1 deadline, therefore, employers
that offer group health plan benefits to their
employees should ensure their self-funded and fully
insured plans comply with the ACA provisions that
will become effective in 2014. This means
examining and, in some cases amending, plan and
insurance contract provisions.
2. Identify workers who are misclassified as
independent contractors.
Both the Department of Labor and the Internal
Revenue Service have announced that addressing
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the issue of misclassified workers is a high priority
for their audit and enforcement activities.
Complying with the ACA’s provisions requiring
employers to count their employees and identify
which are “full-time,” as a foundational matter,
begin with distinguishing employees from
independent contractors. The financial stakes for
errors in worker classification are high and will only
increase once the ACA is fully effective.
Non-employee status should be examined and
documented. Now is the time to correct the
misclassification of workers who are erroneously
treated as independent contractors. However, this
does not mean that workers who currently are
employees should be reclassified as independent
contractors to avoid the ACA’s mandates.
3. Investigate the application of the controlled and
affiliated service group rules.
The ACA requires employers that are “related
entities” to count employees as if they are employed
by a single entity. The ACA rules are similar to the
rules applicable to qualified employee pension plans
in this regard. Two related employers, each with 25
full-time and full-time equivalent employees, for
example, are counted as one “applicable large
employer” that reaches the 50-employee threshold
to be covered under the ACA.
Controlled and affiliated service groups of
employers are often overlooked in this analysis.
Now is a good time for employers to review their
corporate structure to determine whether relatedentity issues exist and try to resolve them, if
possible.
4. Examine temporary and leased employee
agreements.
The Treasury regulations promulgated under the
ACA suggest that an applicable large employer may
be subject to the ACA penalties for any worker who
is a “common law” employee, as determined under
the Internal Revenue Code provisions and
regulations governing payroll taxes.
Employers that hire workers through temporary and
employee leasing agencies may find themselves
deemed to be co-employers with the agencies and,
thus, jointly and severally liable with the agencies
for ACA penalties. Therefore, employers who
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contract with temporary employment and employee
leasing agencies should examine their contracts and
take steps to ensure the agencies both shoulder the
burden for ACA compliance for these workers and
indemnify their client-employers from ACA
penalties.
5. Avoid “messing” with your insurance contract
renewal dates.
The Treasury regulations promulgated under the
ACA basically “freeze” a group health plan’s year
to the 12-month period that was defined as the “plan
year” as of Dec. 27, 2012. Thus, it is too late for
employers to try to delay the ACA’s effective date
by altering their plan year.
An insurance contract that may be used to pay for
health plan benefits only constitutes the plan’s
funding mechanism. It is not, by itself, the “plan.”
Therefore, changing the renewal date of the
insurance contract that funds a group health plan
will not be successful in altering the actual plan
year.
The only consequence of changing an insurance
policy renewal date at this point will be to have a
plan that must comply with the ACA by Jan. 1,
2014, and a non-compliant insurance policy that
funds the plan into or through 2014. Both large and
small employers should avoid doing this.
6. Take the time to model the impact of the ACA’s
mandates and penalties.
The removal of the ability of insurance carriers and
self-funded plans to limit liability by imposing
annual and lifetime benefit limitations compels the
recognition that the financial risk of offering group
health plan benefits has risen and, therefore, so will
the cost of coverage. It is thus imperative for all
employers to model the impact of potential rising
cost of coverage, the non-deductible expense of
ACA penalties, the effect of moving employees
from full-time to part-time status, and the
affordability of different group health plan designs
in order to forecast and plan for the impact of the
ACA on the employer’s “bottom line.”
Modeling various ACA-driven scenarios allows
employers to control the ACA’s impact, rather than
being driven by it. The employer that finds an
accounting or consulting firm with good ACA-
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modeling software and takes advantage of it will be
better able to respond to the ACA’s mandates.
A Proactive Approach
ACA compliance, like most legal compliance
endeavors, will be easier, more cost-efficient and
effective if approached proactively. The next two
years undoubtedly will provide many ACAtransition challenges. Employers that take
advantage of the upcoming months to undertake
these six steps will be better prepared to meet the
challenges, both financially and operationally.
13th Annual DE SHRM State
Conference
Join us on November 6th and 7th, 2013 at John M.
Clayton Hall Conference Center, University of
Delaware for this annual conference. By attending
you can learn how to continue to maneuver through
the political climate and economic changes to best
meet the needs of your employees and the
organizations you serve.
The 2013 conference is a robust event featuring
sessions and educational opportunities. The topics
range the full spectrum of HR learning; from the
core principles that all HR professionals need to the
innovative new practices that are revolutionizing
how you work.
No matter where you are in your career, it is
imperative that you get the learning you need to
succeed. The conference program features sessions
that have been carefully selected to ensure that you
will be more prepared for every challenge.
During the conference there will be a vast selection
of educational opportunities. From practical tips, to
innovation in HR, to motivating people, the
concurrent sessions are designed to teach and
inspire the HR community.
Copy and past the information below to register:
https://m360.deshrm.org/frontend/event/registration
/login.aspx?EventId=82780
For your convenience, the following page lists the
conference sessions / agenda.
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Wednesday Nov 06
1:00–2:00pm
Registration Wednesday, November 6, 2013
2:00–3:15pm
Social Media Update - Margaret (Molly) DiBianca
3:30–4:45pm
ADA Update - William W. Bowser
5:00–6:15pm
The Good, The Bad, The Ugly: Employment Law Update William W. Bowser and Scott A. Holt
6:30–8:00pm
Cocktails and Networking
Monthly Strategies
12:45–2:00pm
Recognition and Awards Luncheon
2:00–2:45pm
Networking Dessert
3:00–4:00pm
Engaging Employees: Healthcare Challenges and
Opportunities - Abbie Leibowitz, M.D., F.A.A.P
Disaster Recovery & Business Continuity “Must Haves” for
HR Professionals - Ralph Petti, MBCI, CBCP
Building Teams That Generate Breakthrough Results In
Times Of Change - Jack Gottlieb
FMLA: Back to the Basics and 2013 Regulations – Jennifer
Jauffret, Esq. and Lori Brewington, Esq
Thursday Nov 07
4:15–5:15pm
This would be Funny…. if it Wasn’t Happening to Me! How to
7:30–8:15am
Embrace Change with Enthusiasm and Vigor
Registration/Continental Breakfast
8:30–8:45am
Welcome and Opening Statements
8:45–9:45am
Building a Culture of Innovation- Bette Francis
10:00–11:00am
Are We Being Too Polite? - Vicki Cotter, SPHR, CPCC, ACC
Mediation at the Delaware Department of Labor (DDOL) Barry M. Willoughby and Daniel McGannon
Using Coaching to Optimize Leadership Potential - Kathleen
Clancy Jefferson
Up, Down, and Sideways - Dr. Pat Buhler and Dr Joel
Worden
11:30am–12:30pm
Decrease Healthcare Costs: Address Financial Stress in
Your Workforce- Jenna Fenstermacher
Critical Social Security Retirement Planning Issues – Ben
Shamburger, MSW
Using Persuasion to Influence Business Outcomes –
Suzanne McCall
Workplace Flexibility: The Next Imperative for Business
Success and HR Leadership - Lisa Horn
If your organization would like to learn more about the
items in this newsletter, please feel free to contact Tricia
Clendening at 302.376.8595 (office) or 302.373.1784
(cell) or [email protected]. Please contact us if
you would like to be removed from our Monthly
Strategies mailing list or if you would like for us to add
someone to our mailing list.