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Open Enrollment Trends in 2023

Here are some general trends that have been observed in recent years that continue to influence Open Enrollments for employers in 2023.

Open Enrollment trends in 2023, it’s advisable to consult industry reports, insurance providers,

  • Increased emphasis on digital enrollment: With the growing reliance on technology, more employers and insurance providers are shifting towards digital platforms for Open Enrollment. This allows for greater convenience, accessibility, and efficiency in the enrollment process. Online systems, like Ease and Employee Navigator, are great tools and may be available at no cost from your benefits broker.
  • Expanded use of online decision support tools: Decision support tools, such as online calculators and plan comparison tools, have become increasingly popular during Open Enrollment. These tools help individuals assess their healthcare needs, compare plan options, and make more informed decisions. Companies like BRI offer resources to clients that can help employees use recommendations to enroll in the benefits that best suit their needs. Other options for small/mid businesses include: Perky Tech and Plansource.
  • Continued rise of consumer-driven health plans: Consumer-driven health plans, such as high-deductible health plans (HDHPs) and health savings accounts (HSAs), have gained traction in recent years. These plans typically offer lower premiums but higher deductibles, giving individuals more control over their healthcare spending. HSA assets grew by 6% in 2022, and look to keep growing.
  • Focus on employee wellness and well-being: Many employers are recognizing the importance of supporting employee wellness and well-being. As a result, they may offer additional benefits and resources related to mental health, stress management, fitness, and preventive care during the Open Enrollment period. Spend some time focusing on benefit plan perks and freebies, such as telemedicine, wellness, rewards and EAP access. For instance, UHC offers UHC Rewards, Rally (app), UHC SimplyEngaged (biometric testing rewards) and Motion (earn money toward HSA for activity).
  • Increased emphasis on transparency and cost-sharing: There has been a push for greater transparency in healthcare costs, with more emphasis on helping individuals understand the cost-sharing components of their health plans. This includes providing clearer information on deductibles, copayments, and coinsurance to enable more informed decision-making.
  • Ongoing changes to regulatory and policy landscape: Healthcare regulations and policies can significantly impact Open Enrollment. Changes in federal or state regulations, such as modifications to the Affordable Care Act (ACA) or new legislation, may influence plan options, coverage requirements, and enrollment deadlines. Individual health plans continued to grow, up 25% from 2020 to 2022 (to over 16 million), due to enhanced government subsidies which will extend through 2025 under the Inflation Reduction Act.

Does a K1 or Owner Complete an I9 form?

According to USCIS, an employer must complete Form I-9 each time it hires any person to perform labor or services in the United States in return for wages or other remuneration. Remuneration is anything of value given in exchange for labor or services, including food and lodging. The requirement to complete Form I-9 applies to new employees hired in the United States after Nov. 6, 1986.

Form I9 is not completed for the following workers:

  • Independent contractors; or
  • Employee of a contractor providing contract services (such as employee leasing or temporary agencies) to your business (providing labor);

Are Schedule K1 and Owners considered employees? K-1 employees are the co-owners or partners in a business. These employees differ from W-2 and 1099 employees in several ways: (1) Partners annually file Schedule K-1 (Form 1065) to report income, deductions, gains, losses, and other business-relevant transactions from the operation of the business; and (2) Partners normally do not receive a Form W-2. Income reported on a K-1 is not subject to income tax. Partners and shareholders are not considered employees. However, on rare occasions, a partner may receive both non-taxable income to report on a K-1 and taxable income to report on a W-2. In this situation, the partner would receive taxable income and deductions using normal earning and deduction codes in the payroll system, and be considered an employee of the business.

Guidance in the Handbook for Employers M-274, states that someone that is self-employed would not need to complete Form I-9 on their own behalf unless the person is also an employee of a separate business entity, such as a corporation or partnership. In that case, the person and any other employees must complete Form I-9. So, company owners who are also employees of their own company need to complete the form. If a person is a business owner that actively performs services for a partnership or a corporation – both separate entities – and receives payment in return, an I9 form should be completed.

Common Form I9 Errors and How to Avoid Them

The Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. It is mandatory for new hires from organizations of all sizes. Here are 14 common errors that can occur when completing Form I-9 and how to avoid them:

  1. Failure to complete all required fields: It’s important to ensure that all sections of the Form I-9 are completed accurately and in their entirety. Double-check that no fields are left blank.
  2. Employee does not sign or date the attestation.
  3. Using an outdated version of the form. USCIS periodically updates the Form I-9, and using an outdated version can lead to errors. To avoid this, always check for the most recent version of the form. Visit the USCIS website to check on the latest version.
  4. Failure to provide the employee’s full legal name. When completing Section 1 of the Form I-9, employees must provide their full legal name, including any middle names or initials. Nicknames or abbreviations should not be used. Use the name identified on official government documents (i.e. driver’s license, social security card …)
  5. Employee does not check the box “I did not use a preparer or translator.”
  6. Incorrectly documenting employment eligibility or expiration dates. In Section 1, employees must indicate their employment eligibility category (e.g., U.S. citizen, lawful permanent resident, etc.) and provide the expiration date of their employment authorization if applicable. Sometimes employees put their date of birth by accident.
  7. Employer using a P.O. Box for an address – it must be a physical address.
  8. Employer does not enter the employee’s last name, first name, middle initial and citizenship/immigration status in the “Employee Info from Section 1” area at the top of Section 2.
  9. Accepting unacceptable documents. Employers must carefully review and accept only acceptable documents for verification purposes. Review each section of List A, List B, and List C for acceptable documents.
  10. Failure to properly complete Section 2 or Section 3 by the employer. Employers must complete Section 2 within three business days of the employee’s first day of work. Ensure that all fields are completed accurately, including the document title, issuing authority, document number, and expiration date.
  11. Improperly retaining or storing completed forms. Employers must retain the completed Form I-9 for each employee for a specific period as per the guidelines provided by USCIS. Documents may be retained as physical copies or in electronic format.
  12. Highlighting marks, hole punches and staples are ok, if they do not interfere with an authorized official’s ability to read the information on the form.
  13. Using abbreviations that are not widely understood.
  14. Information on the I9 form is too messy, not clear and cannot be read.

Read more tips from the US Citizen and Immigration Services. If your organization needs an independent third party I9 audit or immigration review contact Consultstu at (727) 350-0370, or [email protected]. We have completed many independent third-party immigration reviews for companies seeking to become Publix vendors and suppliers.

How to Strengthen and Improve Your Harassment Avoidance Program

Harassment prevention is a critical aspect of any workplace culture. In April, the U.S. Equal Employment Opportunity Commission (EEOC) issued a technical assistance document titled “Promising Practices for Preventing Harassment in the Federal Sector,” which provides practical tips for preventing and addressing harassment within the federal civilian workforce. Private sector employers can review the guidance and use it to strengthen and improve their harassment avoidance program.

The “Promising Practices” document provides recommendations in four main areas: 1) leadership and accountability, 2) comprehensive and effective anti-harassment policy, 3) effective and accessible anti-harassment program, and 4) effective anti-harassment training.

  1. Leadership and Accountability: Establish and maintain an effective EEO/Harassment program and demonstrate commitment and accountability from company leaders. Key actions may include: adequate funding for the program, access to neutral staff to assist with investigations, a commitment to complete investigations within 10 days, conducting periodic climate surveys and considering the use of an anonymous concern line for employees.
  2. Comprehensive and effective anti-harassment policy: Have a comprehensive policy that clearly defines harassment, outlines the types of conduct that are prohibited, and provides a reporting mechanism for employees who experience or witness harassment. Key items for your policy include: covering applicants and employees, assure that bullying, intimidation, and stalking are referenced and not be tolerated, being easy to understand (limited legalese), covering social platforms and time limits for concluding investigations.
  3. Effective and accessible anti-harassment program: Make sure all employees understand the policy and know how to report incidents of harassment. Clear reporting and complaint procedures to ensure the company properly respond to harassment allegations. Key actions may include: anonymous methods for reporting, creating a well-documented complaint tracking system, analyzing data for trends and patterns and training employees on the difference between EEO policy and non-harassment policy.
  4. Effective anti-harassment training. Provide regular training to all employees on harassment prevention, including what constitutes harassment, how to report it, and the consequences for engaging in harassing behavior. Offer training to employees as well as supervisors, provide “real life” examples in the training, have a question and answer portion to the training, tailor training to your workforce, and use smaller groups to enhance engagement.

By reviewing the EEOC’s recommendations for federal agencies, your company can learn of ways to create a workplace culture that is safe and respectful for all employees and ensure that your company is taking proactive steps to prevent and address harassment.

Florida’s New E-Verify Rule Starts July 1, 2023

Currently, employment verification (I9 form) is required by all employers within 3 days of hire to ensure the employee is authorized to work in the United States. E-Verify, an online tool operated by the U.S. Department of Homeland Security, allows employers to electronically verify employment eligibility after having completed the I-9 form. Currently, E-Verify is mandatory in Florida for public employers, as well as private employers who contract with local and state governments, including public colleges and universities.

On May 10, Florida’s Governor Ron DeSantis signed SB 1718 into law. This new Florida law, effective July 1, 2023, creates a new requirement for all private employers with at least 25 employees to use E-Verify. There will also be an increase in penalties for noncompliance and for those employers who knowingly hire undocumented workers. Here are several takeaways for employers regarding this new law:

  • Private employers with 25 or more employees must utilize E-Verify for employees hired on July 1, 2023 and thereafter. If the records do not match, the e-verify system will notify of a mismatch and an employer must give notice to the employee (no match process). The employee then has 10 days from the mismatch to notify the employer if they have resolved the situation. If there is no resolution, the eligibility to continue employment ceases.  
  • Employers must keep a record of the documentation for at least three years. Employers required to use E-Verify must also certify compliance annually and when making contributions to the state’s unemployment compensation system.
  • Employers that use the E-verify system establish a rebuttable presumption that they have not knowingly employed an unauthorized worker. If the e-verify system is down for more than three days and the employer cannot complete the process in a timely manner, this presumption can be maintained by completing an I-9 form and taking a screenshot each day showing the system was unavailable (and retaining any official notice or communication about the systems being down.

The penalties for noncompliance will take effect July 1, 2024 (one-year delay in enforcement). The Department of Economic Opportunity will give 30 days’ notice to fix any non-compliance. If the business fails to use E-Verify three times within any 24-month period, the DEO will fine $1,000 per day until proper proof of non-compliance is resolved. The first violation puts the business on a one-year probation period. If requirements are not followed, it could result in revoking state-issued licenses.

Time to Update your FCRA Summary of Rights Notice (April 2023)

On March 17, 2023, the Consumer Financial Protection Bureau (CFPB) published an updated version of the publication entitled, “A Summary of Your Rights Under the Fair Credit Reporting Act,” which is also called the “Summary of Consumer Rights.”  The latest version replaces the original version that was published in 2018. There are English and Spanish versions of the Summary available on the CFPB’s website.  Employers and consumer reporting agencies (CRAs) must provide the new summary to applicants and employees to comply with the federal Fair Credit Reporting Act (FCRA). correct contact information for various federal agencies. 

What has changed? The new Summary of Consumer Rights notice makes some minor language changes and also corrects the contact information for several federal agencies. Although these changes are small, the new notice must be provided to employees and applicants during background checks and during the adverse action process to maintain compliance with the FCRA.

What is the deadline to use the new Notice? This new rule went into effect as of April 19, 2023, though there is a grace period for employers and credit reporting agencies until March 20, 2024. It is not necessary to provide the updated notice for anyone who has been given the prior notice.

How MIYA’s Law Impacts Florida Background Screening

Named after Miya Marcano, an Orlando College student that was murdered in an apartment complex by a maintenance worker, Miya’s law is a new Florida Statute that is aimed to improve residential tenant safety by imposing new legal duties on Florida landlords and property managers. Effective January 1, 2023, landlords of public lodging establishments (as defined in 509.242(1)(d) and non-transient and transient apartments must perform a thorough background check on any potential apartment complex employee as a condition of employment.

Under Miya’s law (FL Stat. 83.515), the required background screening must be performed by a consumer reporting agency in accordance with the federal Fair Credit Reporting Act (FCRA). The screening must include a search of criminal history records and sexual predator and sexual offender registries in all 50 states, and the District of Columbia. Landlords have the right to disqualify an applicant if they have been found guilty, convicted or entered a plea of guilty/nolo contendre to a criminal offense that involves the disregard for the safety of others (felony or misdemeanor in the first degree in Florida), or a criminal offense in another jurisdiction that involved violence (including but not limited to murder, sexual battery, robbery carjacking, home invasion, and stalking). Disqualification can occur for crimes committed in another state if they would be a felony or first-degree misdemeanor if committed in Florida.

In addition to the background check requirement, there are some additional changes to landlord and tenant rules. A written log accounting for the issuance/return of keys and a written policy and procedure for the issuance and return of keys (and storage and access to unissued keys) are mandatory for apartments (transient and non-transient). In addition, the reasonable notice period that the landlord of residential tenancies must give to tenants for repairs is lengthed from 12 to 24 hours. And, the reasonable time for making repairs is between 7 am and 8 pm.

Questions about background checks? Consultstu works with clients to perform criminal checks using a national consumer reporting agency that complies with FCRA mandates (including the adverse action process). We can perform criminal background screening, drug testing (a nationwide network of collection labs), MVRs, as well as educational and employment verifications.

Create a Supercharged Employee Referral Program

Recruiting has been tough in recent years. We have many clients who successfully use an employee referral bonus program to supercharge their recruitment of talent. Employee referral programs accomplish three important objectives: (1) it engages employees in the business and adds excitement; (2) it pays current employees (instead of recruiting companies) for qualified leads; and (3) it expands the company recruiting reach to passive job seekers. Here are some steps to create an effective employee referral program:

  • Define the program’s objectives: Before creating an employee referral program, it is essential to understand what you want to achieve with it. Your objectives may include reducing recruitment costs, improving employee retention rates, exciting employees and finding good candidates.
  • Determine rewards and incentives: Decide on the type of rewards or incentives you will offer to employees who refer successful candidates. Monetary incentives (bonus or cash), or non-monetary (paid day off) or a gift card. Set the value appropriately – we have clients using $100 for entry level workers to $3,000 for highly paid professionals. Make the reward worth the effort of referring qualified candidates.
  • Develop a communication plan: Once you create the program objectives and incentives, write a communication plan (email, flyer etc..) to inform employees about the referral program. Use multiple channels, including emails, social media, and team meetings, to spread the word.
  • Create referral guidelines: Establish clear guidelines for the referral process. Outline the positions that are open for referral, the basic qualifications required and how the referral process works. Employees need understand how to refer candidates and what information they need to provide (include the employee’s name on the application, or with the shared resume).
  • Monitor the program: Track the number of referrals received, the success rate of referrals, and the overall cost-effectiveness of the program. Regularly review the program’s performance and make necessary changes to improve its effectiveness. We have a client that receives 50% of its new hires through the referral process!
  • Publically recognize and reward successful referrals: Recognize employees who make successful referrals in a public way. Celebrate their achievements and make sure they feel appreciated for their contributions to the company’s success. Company communications and social media are great ways to show appreciation to those employees.
  • Continuously improve the program: Keep improving the employee referral program over time. Solicit feedback from employees and candidates to identify areas for improvement and make changes accordingly.

By following these steps, your company can create a supercharged and effective employee referral program that will bring qualified candidates to your door and also help you retain top talent.

PTO Can be Docked from Salaried Employees

Paid time off is a fringe benefit and is not considered part of a worker’s salary ruled a federal appeals court on March 15, 2023. In a case brought by employees (nurses, physical therapists and social workers) at Bayada Home Health Care, the judges concluded that the company can take away paid leave when salaried workers do not meet productivity quotas. The Philadelphia-based 3rd U.S. Circuit Court of Appeals unanimously ruled that Bayada Home Health Care Inc did not violate federal wage law by docking salaried employees’ paid time off, or PTO, when they did not work required weekly hours. This was the first time that an appellate court ruled on whether docking PTO from salaried employees causes them to lose their exemption from overtime.

While a salary is a fixed amount of compensation paid out at regular intervals, paid time off is a fringe benefit that has no effect on a worker’s wages and can be paid irregularly, such as when an employee leaves a company. The court did not agree with the employees’ argument that deducting PTO when they did not reach a weekly productivity quota, meant that they were paid based on how much they worked and were not salaried employees exempt from overtime pay under the federal Fair Labor Standards Act. This decision affirmed a federal judge’s 2021 ruling for the company. (Higgins v. Bayada Home Health Care Inc., No. 21-3286 (3d Cir., March 15, 2023).

As a refresher, employees can be exempt from overtime if they have exempt duties and are paid on a salary basis. Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work. Read more about the Salary Basis rules.

FTC Proposes Rule to Ban Non-compete Clauses: What Happens next?

In January, the Federal Trade Commission (FTC) proposed a new rule that would ban employers from imposing noncompetes on their workers, a widespread and often exploitative practice that suppresses wages, hampers innovation, and blocks entrepreneurs from starting new businesses. By stopping this practice, the agency estimates that the new proposed rule could increase wages by nearly $300 billion per year and expand career opportunities for about 30 million Americans. Read more from the FTC.

The FTC is seeking public comment on the proposed rule, which is based on a preliminary finding that noncompetes constitute an unfair method of competition and therefore violate Section 5 of the Federal Trade Commission Act. The FTC’s proposed rule would generally prohibit employers from using noncompete clauses. Specifically, the FTC’s new rule would make it illegal for an employer to:

  • enter into or attempt to enter into a non-compete with a worker;
  • maintain a noncompete with a worker; or
  • represent to a worker, under certain circumstances, that the worker is subject to a non-compete.

The proposed rule would apply to independent contractors and anyone who works for an employer, whether paid or unpaid. It would also require employers to rescind existing noncompetes and actively inform workers that they are no longer in effect. The proposed rule would generally not apply to other types of employment restrictions, like non-disclosure agreements. However, other types of employment restrictions could be subject to the rule if they are so broad in scope that they function as non-competes.

If you are interested in reading more about what might happen if this regulation goes into effect, and how employees will need to respond, read these FAQs.

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