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Welcome to the Law Offices of Scott D. Segal, P.A., a law firm specializing in all of your HR needs, including representing clients in the fields of employment law, employee benefits, executive compensation and ERISA law. Scott D. Segal, its shareholder, has nearly 15 years of experience with global New York and Miami law firms, including Clifford Chance LLP and Holland & Knight PA, counseling clients in all aspects of these fields of law, including advising clients on how to stay compliant with the various issues with employees from hiring through termination of employment, as well as the design, drafting, implementation and administration of qualified and nonqualified retirement plans, flexible compensation programs, welfare benefits plans, and fiduciary law aspects of ERISA.

His clients have included entrepreneurs, small private start-up companies, family-owned businesses, Fortune 100 companies, as well as tax-exempt and governmental entities. Mr. Segal's principal commitment has been to provide superior service to his clients by employing a unique blend of specialized knowledge and expertise, personalized service, and competitive rates. He is dedicated to serving his clients with honesty, integrity, and excellence. A principal focus of Mr. Segal’s practice is to assist corporate directors, executives, plan committee members, management personnel and human resource professionals who serve as ERISA fiduciaries in meeting their fiduciary duties and obligations under ERISA.

The Law Offices of Scott D. Segal, PA has created a unique solution to all of your HR compliance needs: the HR Annual Fee Program. Clients who sign up for the HR Annual Fee Program receive two services: first, the client gets unlimited responses to every HR legal question that arises for a year, and second, the client gets unlimited document review by the Firm for the year. Clients can rest assured that even if it takes 10 hours of research to determine an answer, or takes 10 hours to review a document, there will be no other monthly invoices. In addition, the client is eligible to receive other HR related work that is not included in the HR Annual Fee Program, such as major drafting of documents, agreements, plans or communications, or representing the client in front of the DOL/IRS/Federal or State Court, at the HR Annual Fee Program rate, which is significantly less than Mr. Segal's regular billing rate. You can get more information on the HR Annual Fee Program by emailing the Firm. Just click the email Scott box to the left.

  • October25th

    The Internal Revenue Service today launched a new program that will enable many employers to resolve past worker classification issues and achieve certainty under the tax law at a low cost by voluntarily reclassifying their workers.

    This new program will allow employers the opportunity to get into compliance by making a minimal payment covering past payroll tax obligations rather than waiting for an IRS audit.

    This is part of a larger “Fresh Start” initiative at the IRS to help taxpayers and businesses address their tax responsibilities.

    “This settlement program provides certainty and relief to employers in an important area,” said IRS Commissioner Doug Shulman. “This is part of a wider effort to help taxpayers and businesses to help give them a fresh start with their tax obligations.”

    The new Voluntary Classification Settlement Program (VCSP) is designed to increase tax compliance and reduce burden for employers by providing greater certainty for employers, workers and the government. Under the program, eligible employers can obtain substantial relief from federal payroll taxes they may have owed for the past, if they prospectively treat workers as employees. The VCSP is available to many businesses, tax-exempt organizations and government entities that currently erroneously treat their workers or a class or group of workers as nonemployees or independent contractors, and now want to correctly treat these workers as employees.

    To be eligible, an applicant must:

    • Consistently have treated the workers in the past as nonemployees,
    • Have filed all required Forms 1099 for the workers for the previous three years
    • Not currently be under audit by the IRS
    • Not currently be under audit by the Department of Labor or a state agency concerning the classification of these workers

    Interested employers can apply for the program by filing Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before they want to begin treating the workers as employees.

    Employers accepted into the program will pay an amount effectively equaling just over one percent of the wages paid to the reclassified workers for the past year. No interest or penalties will be due, and the employers will not be audited on payroll taxes related to these workers for prior years. Participating employers will, for the first three years under the program, be subject to a special six-year statute of limitations, rather than the usual three years that generally applies to payroll taxes.

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  • October24th

    The IRS recently announced the 2012 cost of living adjustments applicable to dollar limitations for qualified plans (and other retirement plans) for 2012. Of particular interest, the IRS increased the amount that 401(k) plan participants can defer a portion of their salary from $16,500 to $17,000. For such participants aged 50 and over, these participant are allowed to make an additional catch-up contribution to the 401(k) plan of $5,500 (for a total elective deferral of $22,500).

    Internal Revenue Code (IRC) Section 415 provides for dollar limitations on benefits and contributions under qualified retirement plans. In addition, Section 415 requires the IRS to adjust these limits for cost-of-living increases. Other limitations applicable to qualified plans are also affected by these adjustments. The following is a chart to use for your convenience:

    Code Section 2012 2011 2010
    401(a)(17)/404(l) Annual Compensation $250,000 $245,000 $245,000
    402(g)(1) Elective Deferrals $17,000 $16,500 $16,500
    414(q)(1)(B) Highly Compensated Employee $115,000 $110,000 $110,000
    414(v)(2)(B)(i) Catch Up Contributions (non IRA) $5,500 $5,500 $5,000
    414(v)(2)(B)(ii) Catch Up Contributions (IRA) $2,500 $2,500 $2,500
    415(b)(1)(A) Defined Benefit Limitation $200,000 $195,000 $195,000
    415(c)(1)(A) Defined Contribution Limitations $50,000 $49,000 $49,000
    416(i)(1)(A)(i) Key Employee $165,000 $160,000 $160,000
    457(e) Deferral Limits $17,000 $16,500 $16,500
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  • October20th

    Employers who do not employ “union employees” are sometimes caught unaware that their employees are protected under certain provisions of the National Labor Relations Act (the “NLRA”). In particular, Section 7 of the NLRA provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (emphasis added). Section 8(a) of the NLRA makes it an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.

    Based on these provisions of the NLRA, the National Labor Relations Board (the “Board”) recently decided its first case ever regarding an employer basing its employment decisions on the use of social networks by employees. The Board, in Hispanics United of Buffalo vs. Carlos Ortiz, found against a New York non-profit organization for terminating five employees due to the employees’ Facebook discussion about a co-worker. In the case, the employer claimed that a Facebook discussion by and between the five employees regarding another co-worker’s criticism of their job performance amounted to bullying and terminated the employees under the employer’s anti-harassment policy in the employee handbook. The employees brought suit against the employer stating that the Facebook discussion was protected under the NLRA because it was a concerted discussion for the purpose of protection.

    The NLRB Administrative Law Judge ruled the employees’ Facebook postings, discussing issues regarding the workplace and work productivity, was protected speech under Section 8 of the NLRA. The judge ruled that the “employees were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [their colleague] was going to make to management. By discharging the employees, the employer prevented them from taking any further group action vis-a-vis [their colleague’s] criticisms.”
    The judge then analyzed the speech against some of the limited exceptions to NLRA Section 7 protection. The factors for determining whether an exception to Section 7 applies are found in the NLRB’s decision in Atlantic Steel Co. including: (a) the place of the discussion, (b) the subject matter of the discussion, (c) the nature of the employee’s outburst, and (d) if the outburst was provoked by the employer. The judge found that none of the factors applied to this particular case. Even more importantly, the judge stated that it was basically irrelevant that the discussion took place in a public forum, like Facebook, where non-employees were able to see the posts.

    Finally, the judge took into consideration the harassment policies posted by Hispanics United of Buffalo and found that no type of harassment (sex, religion, race, etc.) as stated in the employee handbook applied. Therefore, as the employees did not violate the employer’s harassment policy or engage in activity disqualifying them from protection under the Act, the employees’ Facebook discussion was protected, and the employees were terminated unlawfully. The judge ordered the employer to reinstate each employee to their former position as well as provide them with backpay.

    In light of this ruling, employers should be mindful of making employment decisions based on employees using social media to air their employment related issues and problems. In addition, employers should ensure that their social media policies conform in regards to dealing with situations inside and out of the workplace.

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  • October13th

    The Deadline for providing the Medicare Part D Notices is fast approaching.

    Medicare Part D prescription drug coverage is critically important for more and more Americans every year. According to the Centers for Medicare and Medicaid Services (CMS), millions upon millions of Americans are eligible for Medicare Part D prescription drug coverage. With an aging U.S. population and Medicare reform as an issue in the health care reform spotlight, Medicare Part D compliance is an issue that no employer with a group health plan can ignore. Millions of Medicare-eligible Americans receive their drug coverage through an employer-sponsored group health plan. Medicare Part D imposes two annual notice requirements on all employers that offer group health plan coverage with a prescription drug benefit:

    * Employers are required to send participants either a Notice of Creditable Coverage or a Notice of Non-Creditable Coverage, whichever is applicable, by October 15 of each year and at other times.

    * Employers must also notify CMS about their plan’s creditable coverage status no later than the 60th day after the start of each plan year.

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  • July13th

    In a notice on its website, the U.S. DOL announced the extension of the applicability date of the fiduciary-level fee disclosure regulation issued under ERISA section 408(b)(2) until April 1, 2012. The Department had previously proposed to extend the applicability date only under January 1, 2012.

    In addition, the DOL also announced an amendment to the applicability date of the participant-level fee disclosure regulation. Initial participant-level disclosures must now be made no later than 60 days after the first day of the plan year beginning after 11/1/11, or if later, 60 days after the effective date of the fiduciary-level fee disclosure regulation. Previously, the DOL had proposed a 120-day transition period to provide these disclosures.

    This was reprinted from ASPPA.

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  • June9th

    Over-the-counter (“OTC”) medicines and drugs must be prescribed in order to be reimbursed through a health FSA or health reimbursement arrangement (“HRA”). This requirement applies to expenses incurred on or after January 1, 2011. It does not apply to insulin or OTC equipment, supplies, or medical devices, provided such expenses are otherwise eligible for reimbursement.

    Plans should already be operating in accordance with this new requirement.

    Employers with health FSAs have until June 30, 2011 to retroactively amend the cafeteria plan document to reflect this change, if necessary. The plan does not need to be amended if, for example, the health FSA never reimbursed OTC drugs. This requires the employer to review its document. The vendor should provide a revised document or amendment covering this change. HRA plan documents should similarly be reviewed and potentially amended soon, although there is no specific deadline.

  • September20th

    Health care reform compliance deadlines are closing in on us.  Grandfathered and non-grandfathered plans must be compliant by the first plan year beginning on or after September 23, 2010.  The following are some  required notices that will have to be provided to plan participants.

    • Grandfathered Plan Status Notice. If maintaining grandfathered status, then participants are entitled to a notice of intent to maintain that status.
    • Special Enrollment Notices for Lifetime Limits. Individuals who have reached their lifetime limits under a plan are entitled to a special notice enrollment telling them that they are available for coverage. Since the lifetime limit is going away, these individuals will be able to have claims paid even though they may not be coming back on the plan.
    • Patient Protection Notice for Physician Choice.  This notice lets participants know that they are able to choose primary care physicians and that they can obtain OB/GYN care without previous approval.
    • Notice of Age 26 Coverage Extension.  Since coverage has expanded to individuals up to the age of 26, participants must be notified of this option along with being provided with enrollment instructions and rights.
    • Appeal Rights.  Since there is a possibility of adding outside appeals to non-grandfathered plans, participants must be informed about the new appeals rights. Also, participants should be reminded of the existing appeal rights under the plan.

    Even though the carrier might send these notices out to plan participants, it is solely the accountability of the company to make certain that notices are being sent out correctly.  You should contact your carrier and/or broker to make sure that your company is up to date with these new notice requirements.  In addition, given that these provisions are all are incorporated into ERISA, it is likely permissible that the normal ERISA notice rules apply (vis-a-vis form of notice), including any method the Department of Labor has previously approved for electronic delivery.

  • September20th

    On July 19, 2010, the U.S. Government issued interim final regulations that require all non-grandfathered health plans to cover preventative services without any cost-sharing for the plan participant when delivered by in-network providers.  The plan does not apply to grandfathered plans.  Cost-sharing refers to any co-pays, deductibles or coinsurance paid by the plan participant when receiving medical services.

    Although the proposed regulations do not specify the exact services that are to be covered at 100%, the regulations do provide for certain classifications that must be covered at 100%.  These include:

    • Evidence-based services that have an A or B rating in the current United States Preventative Services Task Force recommendations;
    • Routine immunizations for children, adolescents and adults as set forth by the Centers for Disease Control and Prevention, as applicable;
    • Screenings and preventive care for infants, children and adolescents; and
    • Screenings and preventive care for women.

    Although subject to change when the final regulations are issued, plan sponsors should know which services they will need to provide without cost sharing.  The rules are effective for all non-grandfathered plans for the first plan year beginning on or after September 23, 2010.  The United States Preventative Services Task Force website has more information on services with A and B ratings, immunizations, and screenings (http://www.healthcare.gov/center/regulations/prevention/recommendations.html).

    Based on most current health plan specifications, changing medical plan coverage to cover these services without cost sharing will not significantly increase the cost of providing health insurance.  For this reason, it is not a particularly compelling reason to maintain grandfathered status for your health plan unless there are other reasons to do so.  You should contact your insurance provider or broker to find out more information.

  • August24th

    Employers must revise their cafeteria plans for changes taking effect during and after 2011.  Effective for expenses incurred on or after Jan. 1, 2011, health flexible spending accounts (FSAs), health reimbursement arrangements (HRAs) and health savings accounts (HSAs) in cafeteria plans may no longer reimburse for over-the-counter (OTC) drugs unless they are prescribed.   Plan sponsors may also want to take the opportunity to amend cafeteria plans at the same time to adopt the new $2,500 limit on health FSAs, which takes effect Jan. 1, 2013 (but are not required to do so).  Therefore, any cafeteria plan that has been reimbursing OTC drugs will have to be amended by Dec. 31, prospectively, to eliminate reimbursement unless the OTC drug is prescribed for an individual.

  • August6th

    The Employer Information Report EEO-1 is required to be filed with the U.S. Equal Employment Opportunity Commission’s EEO-1 Joint Reporting Committee. The filing deadline for the 2010 EEO-1 Survey is September 30, 2010.  All companies with more than 100 employees and who are subject to Title VII are required to file the Form.  Certain companies with under 100 employees are also required to file the EEO-1.

    All single-establishment employers (i.e., employers doing business at only one establishment in one location) must complete a single Standard Form 100, or use one of the alternate filing methods.  All multi-establishment employers (i.e. employers doing business at more than one establishment) must file either (1) a report covering the principal or headquarters office; (2) a separate report for each establishment employing 50 or more persons; (3) a consolidated report that MUST include ALL employees by race, sex and job category in establishments with 50 or more employees as well as establishments with fewer than 50 employees; and (4)
    a list, showing the name, address, total employment and major activity for each establishment employing fewer than 50 persons, must accompany the consolidated report.

    The total number of employees indicated on the headquarters report, PLUS the establishment reports, PLUS the list of establishments with fewer than 50 employees, MUST equal the total number of employees shown on the consolidated report.  All forms for a multi-establishment company must be collected by the headquarters office for its establishments or by the parent corporation for its subsidiary holdings and submitted in one package.

    The preferred method for completing the EEO-1 reports is the web-based filing system, which can be found here:  http://www.eeoc.gov/employers/eeo1survey/index.cfm