Seventh Circuit Weighs In on Church Plan Exemption Under ERISA

Published by Paul W. Schwarzenbart on | Permalink

Just how broad is the “church plan” exemption from the Employee Retirement Income Security Act of 1974 (“ERISA”)? Not broad enough to exempt a retirement plan established by church-affiliated hospital, according to the United States Court of Appeals in Stapleton v. Advocate Health Care Network, No. 15-1368, 2016 WL 1055784 (7th Cir. Mar. 17, 2016), in affirming the district court’s decision addressing the issue.

In reaching that conclusion, the Seventh Circuit relied solely on principles of statutory construction in determining the meaning of a “church plan,” as defined by Subsection (33)(A) of ERISA, 29 U.S.C. § 1002(33). The court did not reach constitutional arguments raised by the parties. The court read paragraph (A) of the statutory definition as requiring, for the statutory exemption to apply, that a church (or a convention of association of churches): (1) create or establish a plan and (2) maintain the plan. The court noted that Advocate Health Care Network plainly was not a church, although it was the successor by merger of two church-affiliated health systems—Lutheran General HealthSystem and Evangelical Health Systems—and is presently affiliated with both the Metropolitan Chicago Synod of the Evangelical Lutheran Church in America and the Illinois Conference of the United Church of Christ.

The court rejected Advocate’s argument that paragraph (C) of subsection 33 enlarged the definition of a church plan, concluding that paragraph (C) only enlarged the statute to permit church-affiliated organizations to “maintain” the plan, but did not erase the predicate requirement under paragraph (A) that a church create or establish the plan. In rejecting Advocate’s argument, the Seventh Circuit adopted the reasoning of the Third Circuit in Kaplan v. St. Peter’s Healthcare System, 810 F.3d 175 (3d Cir. 2015). The court also noted that, although its reliance on the plain meaning of the statutory text made resort to statutory history unnecessary, legislative history supported its narrow interpretation of the church-plan exemption. That Advocate and amici presented numerous examples of Internal Revenue Service private letter rulings stating that church-affiliated hospitals were exempt from ERISA compliance also did not alter the court’s conclusion.

It appears Stapleton and Kaplan may represent the tip of an emerging iceberg of litigation addressing this issue. The Seventh Circuit noted that the Fourth Circuit, in Lown v. Continental Casualty Co., 238 F.3d 543, 547 (4th Cir. 2001), had stated that “a plan established by a corporation associated with a church can still qualify as a church plan ... but did so based solely on the language of subsection (33)(C)(i) without any explanation for the discrepancy with subsection (33)(C)(A) [sic.] requiring that the plan be established by a church.” Stapleton, 2016 WL 1055784, at *7. The court also noted older district court authority from other circuits broadly construing the exemption. Presently, there are at least two district court decisions addressing the issue pending on appeal before other circuits. See Rollins v. Dignity Health, 59 F. Supp. 3d 965 (N.D. Cal. 2014) (concluding church plan exemption did not apply), oral argument held, No. 15-15351 (9th Cir. Feb. 8, 2016); Medina v. Catholic Health Initiatives, --- F. Supp. 3d ---, No. 13-CV-01249-REB-KLM, 2015 WL 8144956 (D. Colo. Dec. 8, 2015) (concluding that church-plan exemption did apply and granting defendants’ motion for summary judgment), appeal docketed, No. 16-1005 (10th Cir. Jan. 7, 2016). The outcomes of these appeals, together with the Third Circuit’s decision in Kaplan and the Seventh Circuit’s decision in Stapleton, may well set the stage for United States Supreme Court review. 

Eligibility for Health Insurance Can Be Tied to Participation in a Wellness Plan

Published by Meg Vergeront on | Permalink

A federal district court judge sitting in the Western District of Wisconsin recently held that an employer that conditioned eligibility for health benefits on participation in its wellness plan did not violate the Americans With Disabilities Act (ADA) because the terms of its health plan brought it within the Act’s “safe-harbor” provision.  See Equal Employment Opportunities Commission v. Flambeau, Inc., 2015 WL 9593632 (W.D. Wis. 2015).  This is a case of first impression in the Seventh Circuit. 

In Flambeau, the employer offered its employees health benefits provided by a self-funded, self-insured plan administered by a third party.  Participation in the plan was voluntary.  Those who elected to participate, however, were also required to participate in Flambeau’s wellness plan.  Participation in the wellness plan obligated employees to complete a health risk assessment and a biometric screening test.  Flambeau used the assessment and test results to classify plan participants’ health risks and calculate Flambeau’s projected insurance costs for the benefit year.  This information was then used to calculate how much the plan should charge plan participants for maintenance medications and preventive care, as well as the amount of premiums.  After identifying these risks based on information from the wellness plan participation, Flambeau decided to purchase stop-loss insurance to protect against the possibility of large claims. 

The Equal Employment Opportunities Commission (EEOC) sued, claiming that tying the eligibility for insurance to participation in the wellness plan violated the ADA.  Specifically, the EEOC claimed that Flambeau’s practice violated the ADA’s prohibition on requiring employees to submit to medical exams that are not job-related and consistent with a business necessity.  See 42 U.S.C. § 12112(d)(4)(A).  Flambeau, however, argued that its wellness plan fell within the safe-harbor provision in 42 U.S.C. § 12201(c)(2).

The court sided with Flambeau.  Subsection (c)(2) of the ADA safe-harbor provision, among other things, permits employers to establish, sponsor or administrate a bona fide benefit plan that is based on underwriting risks, classifying risks or administering such risks, as long as the employer’s actions are not designed to evade the reach of the ADA.  The court held that Flambeau’s wellness program was a “term” of its plan and that the term was included in the plan for the purpose of underwriting, classifying and administering health insurance risks.  It therefore fell squarely within the safe-harbor, unless it appeared that requiring participation in the wellness plan was designed to evade the ADA’s provisions.  The court determined that it was not because the terms of the plan did not involve a disability-based distinction used to discriminate.

At a glance, Flambeau offers needed guidance on the lawfulness of wellness programs.  It is too soon to say whether employers will be able to continue to rely on Flambeau in the future, however, because the EEOC filed an appeal on February 25, 2016.  Stay tuned to see what happens next. 

Time for a FMLA Practice and Policy Self-Audit

Published by Meg Vergeront on | Permalink

In recent years, the federal Department of Labor (DOL) has been focusing significant investigative efforts on employer’s system-wide practices regarding the Family and Medical Leave Act (FMLA).  System-wide practices are those that affect at least several employees or multiple employer locations.  Such practices include:

  • How an employer handles the administration of medical certification forms.  For example, the DOL may look at whether the employer has a practice of requesting recertification of the need for leave more frequently than the FMLA permits.
  • Whether an employer is timely providing employees who may be entitled to leave with the required Rights and Responsibilities, Eligibility and Designation Notices.  
  • Whether the employer properly exercises the right to require a fitness-for-duty note from employees’ health care providers.
  • Whether front line supervisors and managers are adequately trained so that they can recognize whether an employee’s absences are possible due to a serious health condition or other FMLA-qualifying circumstance and timely start the notice procedures.

The DOL’s increased efforts should provide employers with the incentive to review and, if necessary, revise their FMLA policies and practices, paying particular care to the practices identified above.  

Regulations That Will Increase Overtime Costs Moving Forward

Published by Meg Vergeront on | Permalink

By now, employers are familiar with the proposed Wage and Hour regulations governing federal overtime exemption.  These regulations, as proposed, would, among other things, increase the minimum salary necessary (but not sufficient) to retain overtime exemptions.  The regulations would also change the rules with respect to the “highly compensated” exemption.  If you have employees that are classified as highly compensated, you should consult legal counsel for advice.

It is likely that the regulations will be finalized by the end of the year and will be effective in Spring or Summer of 2016.  Once in place, employees must be paid at least $50,440 to be exempt, assuming all of the other, current factors are met.  This means that employers will face tough decisions, such as determining whether to raise salaries and maintain the exemption or to classify positions as non-exempt and figure the hourly wage rate given the number of hours regularly worked to keep employees at the wages currently paid.

Given the timetable for implementing the regulations, now is a good time for employers to be proactive and determine the best approach.  Best practices to achieve this goal are:

  • Review existing exempt positions to determine if they are properly classified under current regulations.  Job duties change over time and what was once exempt may now not be exempt.  This will put you in a position to focus solely on the minimum salary requirement in determining whether positions that are exempt under current regulations should be or can be classified as exempt given wages paid.
  • For positions that would meet the exempt classification criteria given the current minimum salary level, review current salaries for those positions.
  • Consider which salaries you want to raise to retain exempt status and which cannot be raised due to budget constraints. 
  • Figure out the number of hours currently worked by each exempt employee to determine what wages would be if converted to an hourly rate. 
  • Consider whether to lower the hourly rate for those positions which will be reclassified from exempt to non-exempt to control costs so that total wage remain the same.
  • Consider whether you will reduce hours to avoid overtime.
  • Consider whether you will hire more employees to avoid overtime.
  • Consider how any changes to classifications and/or wages will be communicated to employees.  These kinds of changes can affect morale.  For example, many employees see a change from being salaried to earning an hourly wage as a demotion or reflection on performance.  Having a coherent strategy should help reduce the impact the changes.

Employers Should Consider Periodic Review of FMLA Policies and Practices to Prepare for Audit

Published by Meg Vergeront on | Permalink

The federal Department of Labor (DOL) will likely be increasing on-site audits of employer Family and Medical Leave Act (FMLA) practices in an effort to increase compliance with that law.  To keep FMLA policies and practices audit-ready, employers should periodically conduct their own internal audit.  The audit should include:

  • A review of policies, notices and other communications to make sure they are in compliance with current regulations.
  • Review of employment law postings to ensure that the FMLA general notice is properly posted.  
  • Review of FMLA training content for HR and managers.
  • Review paperwork retention policies to make sure that they comply with the law.

Keep in mind that Wisconsin also has a family and medical leave statute (WFMLA).  While the Wisconsin Labor Standards Bureau has not announced plans to audit employers, it is still a good idea to review FMLA policies and practices as set forth above with an eye towards ensuring compliance with state FMLA law as well the federal FMLA.  

If you have questions about FMLA policies and practices or other employment law questions, please contact a member of Stafford's Employment Law Team

Proposed Rule Will Dramatically Increase The Number of Employees Eligible For Overtime

Published by Meg Vergeront on | Permalink

Currently, employers cannot classify positions as exempt from federal overtime rules unless they pay workers in those positions a minimum annual salary of at least $23,660.[1]  President Obama has directed the federal Department of Labor to change that.  On June 29, 2015, President Obama announced a proposed rule that would expand the number of employees eligible for overtime by requiring employers to more than double the current minimum annual salary requirement to $50,440.  If an employer pays a lesser annual salary, an otherwise overtime-exempt position would no longer be exempt.   

Democrats have hailed the proposed rule as providing fair wages to hard-working employees.  Republicans and business groups contend that it will cost jobs.

The rule is expected to be completed in 2016, although implementation of the rule is not a certainty.  Congress can act to block the rule, and it is likely that opponents to the rule will challenge it in court.  Many economists expect that the rule, if implemented, would induce employers to reduce the work hours of employees who lose the overtime exemption and it is likely result in more employers paying a lower base wage to ensure that they do not end up paying more than paid in salary prior to an employee losing the exemption. 

Check this blog regularly for updates on the progress of the rule and timing of implementation if it is adopted. 

[1]           Note:  the minimum salary requirement is only one of many factors that go into determining whether a position is exempt from overtime.  The minimum salary is a necessary, but not sufficient, requirement.

Hiring Teens This Summer?  Make Sure to Do It Right!

Published by Meg Vergeront on | Permalink

It has already started--high school students are blanketing employers in their area with applications for summer employment. Are you ready? Most employers know that special rules apply to teenage employees, but it never hurts to review the basics.

The most basic rule is that both federal and Wisconsin have laws and regulations addressing teen employment and Wisconsin employers must comply with whichever law--state or federal--provides the most protection to the teen. Be sure to review both state and federal rules and/or consult with a wage and hour attorney to make sure you get it right.

Employers should also be aware that Wisconsin law requires that teen employees have work permits in most circumstances. The employer generally distributes the permits to the prospective employee to complete and return.

While there is no cap on the number of hours most teens may work during summer while school is out of session, they cannot work more than 6 days in a row and are prohibited from working in certain industries. Be sure to check both state and federal rules to make sure that teen employment is not forbidden in your industry.

Finally, keep in mind that Wisconsin employers may pay youth under 20 years of age a sub-minimum wage of $5.90 per hour for up to the first 90 days of employment. At the end of the 90 days, the youth must be paid the regular minimum wage. The 90-day period will generally cover the majority of the employment of those teens hired solely for summer work. This can add up to significant savings for an employer. Keep in mind that there are rules designed to prevent abuse of this exception, such as a prohibition against displacing a full minimum wage (or higher) employee with a teen being paid sub-minimum wage.

Legislation to Expand federal FMLA Proposed

Published by Meg Vergeront on | Permalink

A member of Congress recently introduced a bill to amend the federal Family and Medical Leave Act is several significant ways.  HR 3999 would amend the current Act to provide as follows:

*Cover employers with 25 + employees (current only applies to employers with 50 + employees).

*Permit employees to take "parental involvement" leave to participate in/attend activities sponsored by a school or community organization that are related to a program of the school or organization that the employee's son, daughter, or grandchild attends.

*Permit leave for "family wellness" to allow employees to attend to routine family medical care needs, such as medical and dental appointments of children, grandchildren and spouses, or to attend to the care needs of elderly relatives, whether or not they are in nursing or group. 

*Provide up to four hours of "parental or family wellness leave" during a 30-day period and up to 24 hours in a 12-month period.  Employees could elect or the employer could require substitution of other accrued paid leave. 

*Employees would have to give at least seven days' notice of intent to take parental involvement or family wellness leave.  When taking family wellness leave, employees also have to "make a reasonable effort" to schedule the leave so to avoid unduly disrupting the employer's operations, subject to the health care provider's approval (if applicable).
It is critical for employers to keep an eye on this proposed legislation and weigh in if deemed appropriate. 

Keep in mind that, whether or not the legislation passes, Wisconsin has its own Family and Medical Leave Act which has some significant differences from the federal law as it exists and as proposed.  Despite the differences, employers have to comply with both.

EEOC Challenges Standard Separation Agreement Terms as Unlawful

Published by Meg Vergeront on | Permalink

Think your standard employee separation agreement complies with the law?  According to the Equal Opportunities Commission (EEOC), it may not.  The EEOC recently filed a lawsuit in federal court challenging terms of a CVS employment separation agreement.  Specifically, the EEOC is alleging that several terms of the agreement unlawfully restrict the rights of employees who sign the agreements to file discrimination charges or communicate and cooperate with the EEOC.  Such restrictions violate federal law.

The allegedly offending clauses include:

*A cooperation clause requiring employees to notify CVS's in-house counsel if the employee receives an administrative complaint relating to the employee's former employment.

*A confidentiality clause prohibiting employees from discussing personnel information.

*A non-disparagement clause prohibiting employees from making statements disparaging or harming CVS's reputation.

*An attorneys' fees clause requiring a terminated employee to pay CVS's reasonable attorneys' fees if CVS has to sue because the employee breaches the separation agreement.

*A covenant not to sue, prohibiting employees from suing CVS, even though the clause carved out the right to participate in or cooperate with state and federal discrimination investigations and proceedings (such as EEOC investigations/proceedings).

*A general release, including a release of all claims of discrimination.

If the EEOC is successful in this lawsuit, employers will have to virtually start from scratch in an attempt to craft a separation agreement that protects their interests in buying a release of claims from former or departing employees without violating EEOC's dictates. 

Employers need to watch this case closely.

Department of Labor to Crack Down on Independent Contractor Misclassification

Published by Meg Vergeront on | Permalink

The Secretary of the Department of Labor just announced that the Department will be cracking down on employers’ misclassification of employees as independent contractors with respect to minimum wage and overtime requirements.  Employers need to review whether those workers employers label “independent contractors” are properly classified for wage and hour purposes, as well as worker’s compensation and unemployment compensation purposes.  The definition of independent contractor is slightly different under each of these laws and employers in general must make sure that each definition is met before they can lawfully treat individuals who perform work for them as independent contractors.

Next Page