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The Internal Revenue Service (IRS) recently released draft instructions for preparing, distributing and filing 2023 Forms 1094-B/C and 1095-B/C. These instructions largely mirror guidance the IRS has published in previous years, except that the electronic filing threshold has been reduced from 250 forms to 10 forms aggregate.
For 2022 filing, employers could mail their Forms 1094 and 1095 to the IRS if their submission included fewer than 250 forms. For ACA filing for 2023 and future years, employers that cumulatively submit at least 10 forms to the IRS, including W-2s, 1099s, ACA forms 1094/1095, and other common form series, the employer must now file all of those forms electronically.
For example– if you are an employer who issues five Forms W-2 for 2023, four 1095-B forms for 2023, and one 1094-B Form for 2023, this is a sum collectively of 10 total forms and this employer must file all of these forms electronically with the IRS when its due in 2024.
This change result from a final regulation the IRS issued earlier this year that officially reduced the electronic filing threshold for many forms.
Employers that have historically submitted their Forms 1094/1095 to the IRS by paper will need to consider overall how many forms they will be filing with the IRS (not just Forms 1094/1095) in 2024 to determine whether they can continue to file via paper. Even if your carrier prepares you with paper copies of your 1094/1095 forms as a courtesy for submission to the IRS, you will still need to evaluate if you need to file those electronically in 2024.
Ultimately the 10 form aggregate threshold will necessitate electronic filing for nearly every employer. Anyone who has traditionally paper filed their ACA forms to consider contracting with a vendor or speak with their payroll company to see if they can confidentially e-File on their behalf in 2024.
The IRS guidance regarding the filing threshold is available online at https://www.govinfo.gov/content/pkg/FR-2023-02-23/pdf/2023-03710.pdf
The IRS has released Revenue Procedure 2023-34 confirming that for plan years beginning on or after January 1, 2024, the health FSA salary reduction contribution limit will increase to $3,200.
The adjustment for 2024 represents a $150 increase to the current $3,050 health FSA salary reduction contribution limit in 2023.
What About the Carryover Limit into 2025?
The indexed carryover limit for plan years starting in calendar year 2024 to a new plan year starting in calendar year 2025 will increase to $640.
Other Notable 2024 Health and Welfare Employee Benefit Amounts
Did you know that 88% of Americans report feeling stressed at some point during the holidays. During this episode of Myra’s Minutes, we share tips on how to battle holiday induced stress this season.
You can view this short video here.
As a courtesy, Fisher & Phillips LLP has provided a checklist of items to consider when revising your employee appearance policy and dress code – an especially timely topic given the evolving nature of employer expectations in this area.
Evolving Workplace Expectations and Standards
Pandemic prompted changes. Many workplaces have become more casual in recent years, and the COVID-19 pandemic accelerated this movement. Employers and co-workers alike probably don’t mind when a cat, dog, or child occasionally makes an appearance in a Zoom call, and they accept that many employees on those calls are wearing sweatpants with their camera-ready dress shirt. Moreover, many employers that want workers to return to the office have offered a variety of incentives, including a relaxed dress code.
What does this mean for your appearance standards?
These changes should motivate you to think about how to strike a balance between employee comfort and the standards of professionalism for your particular company culture and industry. Every workplace is different, but in general, you should consider the following questions:
|_____||Will you create a general policy simply requiring employees to look professional and well-groomed? Or do you want to be more specific?|
|_____||Will you require customer-facing employees to dress more professionally or formally than those who only interact with co-workers — whether in person or on camera?|
|_____||Will you create a separate policy for Zoom meetings that may be more relaxed than your in-person appearance policy?|
|_____||Do you want to be more specific about what attire is unacceptable in the office or on Zoom? For example, are jeans and a t-shirt allowed? What about baseball caps, sleeveless shirts, or hooded sweatshirts? Just be sure to review such policies for compliance with the workplace laws discussed in more detail below.|
Hairstyle equity. In addition to pandemic-related changes over the last few years, calls for social justice led many jurisdictions to pass laws combating workplace racial bias based on hairstyle. In fact, 19 states and many localities have passed a version of the CROWN Act, which prohibits employers from discriminating against employees and job applicants based on natural or protective hairstyles. Natural hair has not been treated with chemicals that alter color or texture — such as bleach or straightener. Protective hairstyles — such as braids, locs, twists, or bantu knots — tuck the ends of the hair away to protect from sun, heat, and other damage.
Racial discrimination based on hairstyles is a part of everyday life for many Black adults, according to a study by the CROWN Coalition — which was founded by Dove, National Urban League, Color of Change, and Western Center on Law and Poverty. Moreover, a 2019 Dove CROWN study found that Black women were 1.5 times more likely to be sent home from work because of their hair and 30% more likely to be made aware of a formal workplace appearance policy than their co-workers.
In light of laws banning hairstyle bias and to align with your efforts to be inclusive, you’ll want to consider the following about your appearance policy:
|_____||Is the policy fairly and equitably applied to hairstyles regardless of race and ethnicity?|
|_____||Are your policies culturally and ethnically inclusive?|
|_____||Do you require employees to appear professional and well-groomed without creating hairstyle standards that unfairly restrict natural or protective hairstyles?|
|_____||Are your standards based on a bona fide occupational qualification (BFOQ) that is reasonably necessary to the normal operation of your business or enterprise? For example, certain employees who work with food may have to wear hair or beard coverings or tie their hair back for safety and hygiene reasons.|
Reasonable accommodations and other legal considerations. While the COVID-19 pandemic and new CROWN Act requirements may prompt you to update your appearance policy and dress code, don’t forget to review your standards for compliance with other established workplace laws. Consider the following questions:
|_____||Do you have a process in place to review accommodation requests? You may need to explore reasonable accommodations based on an employee’s religious practice or medical condition.|
|_____||For example, does your policy ban hats and other head coverings? If so, you may need to accommodate a Muslim employee who wears a hijab.|
|_____||Do you have a policy banning facial hair? If so, you may need to accommodate an employee with a skin condition — like Pseudofolliculitis Barbae — or a religious reason for growing a beard.|
|_____||If an accommodation does not seem right due to your unique business needs, have you discussed with your employment law counsel the possibility of an undue hardship exception for the business?|
|_____||Is your appearance policy gender-neutral? Without identifying a BFOQ, you shouldn’t create policies that cause greater burdens for employees of one gender than another.|
|_____||Further, have you considered refraining from setting different standards based on gender altogether unless there’s a BFOQ — particularly in light of the 2020 SCOTUS decision in Bostock v. Clayton County? In that case, the Supreme Court held that Title VII of the Civil Rights Act shields workers from discrimination based on gender identity.|
|_____||Have you considered all applicable state and local laws that may specifically address gender identity and workplace policies?|
|_____||Does your policy align with the latest guidance from the National Labor Relations Board (NLRB)? Be sure to consistently enforce any rules prohibiting employees from wearing clothing with logos, political statements, or social justice messages.|
|_____||Are you aware of the NLRB’s current position on employees wearing union insignia — on items such as buttons and t-shirts? An employer needs to show special circumstances that justify its actions when it interferes with its employees’ right to display such insignia.|
|_____||Are there any safety concerns that should be reflected in your dress code? You may want to relax your appearance policy, but you should still consider whether to continue following some rules for safety reasons — either as a best practice or because it’s required by law.|
|_____||For example, will you require certain workers to wear closed-toe shoes? Are there Occupational Safety and Health Administration (OSHA) rules that you need to follow for certain jobs? If so, you’ll want to ensure compliance.|
|_____||Did you review your policies with legal counsel? Because so many evolving areas of law may impact your employee appearance policy and dress code, it’s a good idea to have experienced legal counsel review your standards for compliance before communicating any updates to your employees.|
Recent workplace shifts mean that it’s time to review your employee appearance standards and dress code to ensure they are fair and inclusive, as well as compliant with the latest legal developments. Keep in mind that consistency is key.
Reminder- Florida’s minimum wage will increase to $12.00 per hour on September 30, 2023. The direct wage for tipped employees will also increase to $8.98 per hour. Be sure to update your minimum wage poster(s) before September 30, 2023. Please let us know if you need copy of the updated poster(s).
The IRS recently issued Revenue Procedure 2023-29, which significantly decreases the affordability threshold for ACA employer mandate purposes to 8.39% for plan years beginning in 2024. The new 8.39% level marks by far the lowest affordability percentage to date.
The affordability percentages apply for plan years beginning in the listed year. A calendar plan year will therefore have the 8.39% affordability threshold for the plan year beginning January 1, 2024.
The ACA employer mandate rules apply to employers that are “Applicable Large Employers,” or “ALEs.” In general, an employer is an ALE if it (along with any members in its controlled group) employed an average of at least 50 full-time employees, including full-time equivalent employees, on business days during the preceding calendar year.
There are two potential ACA employer mandate penalties that can impact ALEs:
a) IRC §4980H(a)—The “A Penalty”
The first is the §4980H(a) penalty—frequently referred to as the “A Penalty” or the “Sledge Hammer Penalty.” This penalty applies where the ALE fails to offer minimum essential coverage to at least 95% of its full-time employees in any given calendar month.
The 2024 A Penalty is $2,970 annualized multiplied by all full-time employees (reduced by the first 30). It is triggered by at least one full-time employee who was not offered minimum essential coverage enrolling in subsidized coverage on the Exchange.
The “A Penalty” liability is focused on whether the employer offered a major medical plan to a sufficient percentage of full-time employees—not whether that offer was affordable (or provided minimum value).
b) IRC §4980H(b)—The “B Penalty”
The second is the §4980H(b) penalty—frequently referred to as the “B Penalty or the “Tack Hammer Penalty.” This penalty applies where the ALE is not subject to the A Penalty (i.e., the ALE offers coverage to at least 95% of full-time employees).
The B Penalty applies for each full-time employee who was:
Only those full-time employees who enroll in subsidized coverage on the Exchange will trigger the B Penalty. Unlike the A Penalty, the B Penalty is not multiplied by all full-time employees.
In other words, an ALE who offers minimum essential coverage to a full-time employee will be subject to the B Penalty if:
The 2024 B Penalty is $4,460 annualized per full-time employee receiving subsidized coverage on the Exchange.
Many employer handbooks and policies likely should be reviewed and revised following a landmark Aug. 2 ruling by the National Labor Relations Board (NLRB), Stericycle.
“This ruling, in a word, is huge,” said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. “This decision may invalidate countless workplace rules maintained by private-sector employers—whether they are unionized or not. It applies to all companies covered by the National Labor Relations Act [NLRA], which is the vast majority of employers in America.”
The NLRA does not apply to federal or state governmental units, railroads or airlines.
Employers need to create documentary evidence of the justification for their work rules before an unfair labor practice charge is filed, recommended Harry Johnson III, an attorney with Morgan Lewis in Los Angeles and former NLRB member.
In Stericycle, an administrative law judge found that the employer violated the NLRA by maintaining certain rules for its employees that addressed personal conduct, conflicts of interest and confidentiality of harassment complaints. The NLRB announced a new standard for whether work rules violate the NLRA and sent the case back to the judge to consider the ruling in light of the new standard.
Under that standard, if an employee could reasonably interpret the work rule to have a coercive meaning, the NLRB general counsel would have met her burden to prove that the rule has a reasonable tendency to chill employees from exercising their NLRA rights. The general counsel, currently Jennifer Abruzzo, is independent from the board and responsible for the investigation and prosecution of unfair labor practice cases under the NLRA.
The employer’s intent in maintaining a work rule is immaterial, the NLRB wrote. The board instead clarified it will interpret the rule from the perspective of an employee who is subject to the policy, economically dependent on the employer and contemplates engaging in protected concerted activity.
Concerted activity includes talking with one or more co-workers about wages and benefits or other working conditions, circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions, openly talking about pay and benefits, and joining with co-workers to talk directly to the employer, an agency or the media about problems in the workplace, according to the NLRB.
It’s hard to imagine the general counsel won’t be able to prove that a rule has a reasonable tendency to chill employees from exercising their NLRA rights, said Phil Wilson, president and general counsel with the Labor Relations Institute, a labor and employee relations consulting firm in Broken Arrow, Okla.
If the general counsel provides such proof, the rule is presumptively unlawful. However, the employer may counter the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer can’t advance that interest with a more narrowly tailored rule. If the employer proves this, the work rule will be found lawful.
However, “with little actual guidance about the meaning of the phrases above, needless to say, it is an incredibly uphill battle if an employer finds itself trying to rebut the presumption,” said Jason Reisman, an attorney with Blank Rome in Philadelphia.
In addition, the Stericycle opinion discarded previous NLRB decisions holding that certain types of policies were inherently lawful, regardless of the precise language in which the policy is expressed, in favor of evaluation of each challenged policy on a case-by-case basis, said Peter Spanos, an attorney with Taylor English Duma in Atlanta. Policies that are no longer deemed by the board always lawful to maintain are investigative-confidentiality rules, nondisparagement rules and rules prohibiting outside employment.
“Employee handbooks and policies that were adopted or revised based on prior guidance from the NLRB may now be subject to challenge,” he said.
The decision probably will be appealed. The appellate process can take many months or even years, Pryzbylski added. “In the meantime, the board will be enforcing this new standard, so employers face the risk of having their policies invalidated if they do not revisit them to ensure they are drafted in a compliant manner,” he said. “To the extent they are found to have unlawful rules, it could result in backpay awards in the event an employee is terminated pursuant to such a rule, have negative effects on a union election outcome, as well as other penalties.”
Plus, in most cases, the NLRB does not follow a federal appeals court ruling outside of that court’s jurisdiction until the Supreme Court weighs in, if it does. “So, that may favor companies taking a fresh look at their policies sooner rather than later,” Pryzbylski said.
Examples of policies that likely need to be reviewed and rewritten to be aligned with the new board standard, according to Spanos, include work rules:
All HR professionals should work with their labor counsel to audit current employment policies for compliance with the new standard and to keep up-to-date on board decisions that will apply the Stericycle standard in coming months.
The bottom line is that many policies will be under new and intense scrutiny by the NLRB, and employers should be aware of the new standard and review and update their policies accordingly.
On August 1, 2023, U.S. Citizenship and Immigration Services (“USCIS”) will release a new version of Form I-9, Employment Eligibility Verification. Effective that same day, the Department of Homeland Security (“DHS”) has authorized a permanent optional alternative procedure to allow qualified employers to virtually inspect and verify identification documents to complete Section 2 of Form I-9. Virtual inspection that has been allowed for remote employees since 2020 had been set to expire July 31, 2023.
While DHS previously stated that remotely-verified forms would need to be reverified no later than August 30, 2023, the agency announced that employers do not need to complete the new Form I-9 (Rev. 08/01/23) for current employees who already have a properly completed Form I-9 on file, unless reverification applies after October 31, 2023. Additional details and clarification of “properly completed” will be provided when they become available.
According to the DHS, the alternative remote verification procedure will only be available at this time to qualified employers who are enrolled and participate in good standing in E-Verify. Employers who are already enrolled in E-Verify are not required to reenroll in E-Verify to use the alternative procedure. Also according to DHS, E-Verify has the capacity to support an increased number of employers who may choose to newly enroll in E-Verify to use the alternative procedure. Employers who do not qualify may continue to use authorized representatives where in-person inspection is not feasible.
Qualified employers who choose to remotely verify identification documents after August 1, 2023 must follow the below procedure:
Starting on August 1, 2023, employers may download the new Form I-9 (Rev. 08/01/23) from the USCIS website. The prior version of Form I-9 (Rev. 10/21/19) will no longer be valid after October 31, 2023.
According to the USCIS, the forthcoming new version of Form I-9 will have significant changes to the form and its instructions, including a checkbox to indicate that an employee’s Form I-9 documentation was examined virtually. Other updates to Form I-9 include:
Updates to the Form I-9 instructions include: