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Category Archives: Compliance

Help from the Department of Labor

Joe Nierenberg / October 10th 2006 / No Comments

The U.S. Department of Labor posts a substantial amount of guidance for employers on its web site.

This is the current list of topics on which the Agency provides free compliance information:

  • Drug-Free Workplace Advisor
  • Family & Medical Leave Act (FMLA) Advisor
  • Federal Contractor Compliance Advisor
  • FirstStep Employment Law Advisor
  • FLSA Child Labor Rules Advisor
  • FLSA Coverage & Employment Status Advisor
  • FLSA Hours Worked Advisor
  • FLSA Overtime Security Advisor
  • FLSA Section 14 (c) Advisor (Special Minimum Wage)
  • Health Benefits Advisor
  • MSHA Online Forms Advisor
  • MSHA Training Plan Advisor
  • MSHA Fire Suppression & Fire Protection Advisor
  • OSHA Confined Spaces Advisor
  • OSHA Fire Safety Advisor
  • OSHA Hazard Awareness Advisor
  • OSHA Lead in Construction Advisor
  • OSHA Software Expert Advisors
  • Poster Advisor
  • Small Business Retirement Savings Advisor
  • Uniformed Services Employment & Reemployment Rights Act (USERRA) Advisor
  • Veterans’ Preference Advisor
  • e-VETS Resource Advisor

To give an idea of the scope of information in the Department’s pages, here is the preliminary statement from the recently added Health Benefits Advisor for Employers: “This Health Benefits Advisor provides employers with an overview of certain federal laws that can affect health benefit coverage provided by group health plans. The requirements described in this Advisor generally apply to group health plans and group health insurance issuers….” And here is the preliminary statement from the FirstStep Employment Law Advisor: “The FirstStep Employment Law Advisor is designed to help employers determine which laws administered by the Department of Labor (DOL) apply to their business or organization and to provide links to information about how to comply with these laws.”

Additionally, the Department publishes an online Employment Law Guide, which describes laws, regulations, and technical services available to employers.

These services are limited to areas regulated by the Department of Labor under federal law. There is no information about areas regulated by other agencies, other federal laws, or any state laws. Additionally, the Agency information is oriented to the area of law, not to the workplace dilemma, so it might be difficult to find the right web page if one is unsure what specific laws are implicated. Even so, the web site is a valuable and convenient addition to the resources available to employers with compliance questions.

Proving Compliance with COBRA

Joe Nierenberg / August 08th 2006 / No Comments

COBRA, the federal Consolidated Omnibus Budget Reconciliation Act, requires that administrators of covered health plans notify their terminated employees of a limited option to continue the group health benefits they had before termination. Substantial liability can be at risk if the employee asserts that he or she never received this “COBRA notice” and the plan administrator has inadequate records to satisfy its burden of proof. A recent case will help employers and administrators know what types of records should be created and retained.

The Eighth Circuit of the United States Court of Appeals has ruled that administrators, to carry their burden of proof that a COBRA notice was mailed to an employee, must have “evidence that the employer had a system for sending out the required notices [and] that the system was in fact followed with respect to the person in question.” Crotty v. Dakotacare Administrative Services (8th Cir. 2006) (No. 05-3798).

The Court held that COBRA administrators “must provide something that indicates that its mailing system was reliable and that the system was followed in the relevant instance.” Examples of the records that the administrator in that case did not have are “any evidence that [the contested] letter was printed out, placed in a properly addressed envelope, or sent through the mail.” Examples of records that, in other cases, were sufficient were a photocopy of the addressed envelope, a report stamped with the date of mailing, and an affidavit from the person who recalled mailing the notice.

Employers should be sure that they or their contracted COBRA administrators are creating and retaining the appropriate records. The records should reflect (a) a well-planned and well-executed system for tracking and notifying eligible former employees and also (b) contemporaneous records of the actual mailing to specifically identified recipients.

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