Tuesday Briefing

OK. Summer’s over (from a school-year standpoint, if not astronomically). That means it’s time to check on 5500s (maybe call the auditors to see what surprises they have coming), accept that ACA reporting isn’t going away and start a new ear-worm.  (September – Earth, Wind & Fire)   Today’s post-Labor Day briefing is thematic—the employment relationship. Some of this is re-runs. Here we go.

Does anyone remember the Microsoft independent contractor lawsuit that started in the late 90s and settled in 2000? Microsoft independent contractors, frustrated by their lack of participation in Microsoft stock appreciation showing up in 401(k) and employee stock purchase plans, sued Microsoft alleging they were common law employees. Microsoft eventually settled for $97 million in 2000.  (NYT) (FastCompany)

We all cleaned up our acts and added so-called “Microsoft language” to retirement plans, thinking we would be safe forever. But this issue never seems to go away, in part because it’s not all that easy to define an “employee” and because workforce needs are always changing.

  • We heard recently that the NLRB seems to think one employee can have more than one employer–for the same job.  (NLRB)
  • In the category of history at least rhyming if not repeating itself, Uber drivers have sued, claiming they are employees and not independent contractors. Last week a judge in California certified their class action lawsuit.  (Fortune)
  • Our friend ACA requires offers of coverage to “common law employees” to avoid penalties.  Look at the preambles to the final 4980H regulations (page 8567 in the federal register) if you don’t believe us.  (GPO)
  • “Leased Employees” are not common law employees for ACA purposes. BUT if a leasing organization provides health care to its workers, then the lesee (the company that purchases the services of the workers) can take credit for those offers of coverage if the workers are found out to be common law employees of the lessee.  Take another look at the final 4980H regulations. (GPO)

Confusing, isn’t it. One thing we know for sure. There’s a lot of talk these days about paid time off for employees.

  • Hilton Hotels jumped in the game this week announcing a policy of 10 weeks paid off to new mothers and 2 weeks to new fathers. The Washington Post says this could impact up to 30,000 hourly workers.  (WaPo)
  • And President Obama says “me-too” in an announcement requiring federal contractors to provide up to 7 days paid sick leave to employees of federal contractors.  (NYT)

Bob Seng

With plenty of experience in private practice and as an Assistant General Counsel for Pay & Benefits in a Fortune 50 Company, Bob understands that employee benefits law isn’t for everyone. That’s why he takes pride in listening carefully and responding with clear answers and advice that can be followed by busy clients.

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