With the major implementation of the Patient Protection and Affordable Care Act (ACA) looming in 2014, clubs should already be assessing their employment situation and determining how this law will affect the coverage that they offer to employees. Clubs need to know their number of employees and their hours worked. For many clubs, this will be complex given the seasonal nature of the business and the transitory nature of their workforces.

Here is part II of our FAQs:

Does This Apply to Non-Profit Clubs?
The ACA does not have exclusions for non-profits, churches or state and federal governments. It is fully applicable to non-profit 501(c)(7), Section 277 taxable, member-owned and privately owned clubs.

Do Independent Contractors Count as Employees?
Fully-qualified independent contractors are not counted under the ACA. However, clubs should ensure that their independent contractors meet all requirements as defined by the Internal Revenue Service.

How Does This Affect Waiting Periods?
Effective 2014, group plans can no longer apply waiting periods of more than 90 days. Thus, if you hire a full-time employee, you must put them on your club’s insurance within 90 days. However, if you are unsure about the hours of the employee, you do have the option to delay while using your established measurement period.

When Do I Need to Notify Employees?
On May 8, the Department of Labor issued new guidance for employers, including model notices, as well as the required timing and delivery of the notices. Clubs are required to provide the notice to each new employee at the time of hiring beginning October 1, 2013. For existing employees, clubs are required to provide the notice no later than October 1, 2013. Read the full article and access the model notices.

With the major implementation of the Patient Protection and Affordable Care Act (ACA) looming in 2014, clubs should already be assessing their employment situation and determining how this law will affect the coverage that they offer to employees. Clubs need to know their number of employees and their hours worked. For many clubs, this will be complex given the seasonal nature of the business and the transitory nature of their workforces.

Review this part I of Health Care FAQs:

• How Do I Calculate my Club’s FTEs?
• What Are Measurement Periods?
• What about Seasonal Employees?
• What About Part-Time Employees?
• What About Rehired Workers?
• What Is Minimum Essential Coverage?

Invest 90 minutes in listening to our recent webinar on Pay or Play available exclusively to CMAA members online. Noted health care expert, John Barlament, of Quarles & Brady, shared easy to understand guidance on establishing your FTEs, setting measurement periods and more. His firm’s Pay or Play Guide is a step by step guide with specific examples on seasonal, part-time and re-hired employees.

Another court has held that the Obama Administration acted improperly with its recess appointments and thus has created a lack of quorum for the National Labor Relations Board (NLRB). On May 16, the US Court of Appeals for the Third Circuit held that the NLRB is functioning without a legal quorum and thus unable to issue legitimate rulings (NLRB v. New Vista Nursing and Rehab).

In January, the US Court of Appeals for the DC Circuit ruled that President Obama “exceeded authority in making appointments.” With these appointments being invalid, the NLRB lacks a necessary quorum to conduct business and thus was not acting lawfully in the ruling of the case of the Noel Canning Corporation of Yakima, WA.

The NLRB itself has already requested Supreme Court review in the Noel Canning decision.

It looks like this issue, and specifically what constitutes a legitimate recess appointment, will ultimately be decided by the Supreme Court.

In early May, the US Court of Appeals for the DC Circuit struck down a controversial National Labor Relations Board (NLRB) rule that would have required clubs to post a notice advising workers of their right to organize a union. The posting rule had been on hold following an April 2012 emergency motion barring its enforcement (May 2013 Legislative Report ).

The rule would have required most private employers, including clubs whose gross annual volume of business exceeds $500,000, to post an NLRB-drafted notice informing employees of certain rights under the National Labor Relations Act (NLRA). Judge A. Raymond Randolph ruled the NLRB had violated employers’ free speech rights in trying to force them to display the posters or face charges of committing an unfair labor practice under the NLRA.

The NLRB still has the option to appeal this decision to the US Supreme Court but has yet to indicate if it plans to pursue the matter. 

In a separate action in April 2012, the fourth circuit federal district court in South Carolina issued an order striking down the rule in its entirety, holding that the NLRB had exceeded its regulatory authority. That case remains under appeal.

Earlier this year, the Department of Labor (DOL) announced that the deadline for health care notifications had been extended from March 1 until late summer or fall of 2013. On May 8, the DOL issued new guidance for employers, including model notices, as well as the required timing and delivery of the notices.   details...

S. 460, the Fair Minimum Wage Act of 2013, is set to be considered by the Senate in July. This measure would increase the federal minimum wage from $7.25 to $10.10 in three steps. Initially, 60 days after enactment, it would increase to $8.20. One year later, it would increase to $9.15. After two years, it would jump to $10.10.

For each succeeding year, the minimum wage will be tied directly to the Consumer Price Index. The Secretary of Labor would have the authority to make the annual wage determination 90 days prior to its effective date.   more...

Announced April 24, 2013, the Department of Labor (DOL) and Department of Homeland Security have resumed processing both pending H-2B prevailing wage requests and H-2B applications for temporary labor certification, in accordance with standards set by the recently published Interim Final Rule. Following a late March ruling in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, United States Citizenship and Immigration Services announced that it would stop processing H-2B visa petitions, Form I-129. The court order granted a permanent injunction against the operation of the portion of the DOL’s 2008 wage rule related to certain prevailing wage determinations.  more....

Comprehensive immigration reform has long been a topic of speculation in Washington, DC. Congress is now poised to take on this debate.  S. 744 , the Border Security, Economic Opportunity, and Immigration Modernization Act, is expected to be introduced in the Senate shortly. Already hailed as a worthy compromise from President Obama, the measure will make significant changes to the immigration policy in the US.

Highlights from the 844 page bill include:

Mandated employer use of E-Verify. The mandate would be phased in. It would apply first to employers with more than 5,000 employers. Within three years, it would apply to employers with more than 500. Within four years, it would apply to all employers.

Return of the Exemption for Returning H-2B Visa Workers through 2018. This exemption previously expired at the end of FY 2007. It exempts H-2B visa workers from the annual cap if they have worked on an H-2B visa in the previous three years. Prior to the 2009 economic downturn, this was a very useful exemption for clubs as it allowed the option to allow high-performing workers to return year after year for their seasonal positions. 

Wage Rates Establishment for H-2B Visa Workers. It establishes that the wages for an H-2B visa must the higher of two figures, either the wage paid by the employer to existing similarly-situated workers or the prevailing wage for the position in the specific geographic area. The prevailing wage should be based on based on what is called the “best information available.” It should be determined based on (a) existing collecting bargaining agreement, (b) Bureau of Labor Statistics data or (c) a “legitimate and private survey” of wages for the specific position in the particular geographic area.

Payment of Travel and Fees by Employer. Similar to provisions addressed in the Program Rule changes to H-2B visas which are currently tied up in legal challenges, this measure will require clubs to pay for the transportation costs, including “reasonable subsistence costs during the period of travel” from the place of recruitment to the place of employment and from the place of employment to the individual’s “permanent residence or subsequent worksite” as well as the cost of all fees related to the hiring of the individual. This measure sets the fee at $500. No part of these fees may be charged back to the employee in any manner.

Creation of W Visa Program. Created for low-skilled, non-agricultural guest workers, this visa program would allow W visa holders to bring their spouses and minor children to the US for three years, with the option for renewal for additional three-year periods. In the program’s first year, the annual cap would be 20,000 visas and would ultimately increase to 75,000 in the fourth year. 

Stay tuned for the latest information as it becomes available!