Fair Labor Standards Act (FLSA) § 18B requires that employers subject to the FLSA provide a notice to employees by October 1, 2013 and new hires thereafter. Most firms under $500,000 in annual dollars received from “sales made or business done” are exempt from the FLSA and thus exempt from the notice requirement other than those specifically included regardless of annual income, which are hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; preschools, elementary and secondary schools, and institutions of higher education; and federal, state, and local government agencies.

In addition, only employers with $500,000 more in annual dollars received from “sales made or business done” who are also engaged in interstate commerce are subject to the FLSA. Examples of engaging in interstate commerce include:

  • An employee uses a telephone, facsimile machine, the U.S. mail, or a computer e-mail system to communicate with persons in another state for the business;
  • An employee who drives or flies to another state while performing his or her job duties;
  • The business uses goods from an out of state supplier; or
  • The business uses an electronic device that authorizes a credit/debit card purchase.

The model DOL Exchange Notice for employers with a health plan is located at http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf. For employers with no health plan, the model notice is at http://www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf. Part B on the notice for employers with health plans is optional and complicated and many employers with health plans will not use it, preferring instead to customize the information on the Part B notice for employers with no health plans.

A simplified Lathrop & Gage LLP Sample Notice is below.

PART A: General Information.  When key parts of the health care reform law take effect in 2014, there will be a new way to buy health insurance - the Health Insurance Marketplace or Exchange that will exist in every state. To assist you evaluate options for you and your family, this notice provides basic information about the new state Marketplaces (Exchanges).

What is the Health Insurance Marketplace (Exchange)? Each state’s Marketplace (Exchange) is designed to help you find health insurance that meets your needs and fits your budget. The Marketplace (Exchange) offers “one-stop shopping” to find and compare private health insurance options. You may also be eligible for a new kind of federal tax credit that lowers your monthly premium. Open enrollment for health insurance coverage through the Marketplace (Exchange) begins in October 2013 for coverage starting as early as January 1, 2014.

Can I Save Money on my Health Insurance Premiums in the Marketplace (Exchange)? You may qualify to save money and lower your monthly premium, but only if your employer does not offer coverage, or offers coverage that doesn't meet certain standards. The savings on your premium for which you may be eligible depends on your household income.

Does Employer Health Coverage Affect Eligibility for Premium Savings through the Marketplace (Exchange)? Yes. If you have an offer of health coverage from your employer that meets certain standards, you will not be eligible for a tax credit through the Marketplace (Exchange) and may therefore wish to enroll in your employer’s health plan. However, you may be eligible for a federal income tax credit that lowers your monthly health insurance premium if your employer does not offer health plan coverage to you or does not offer coverage that meets affordability and minimum value standards. If the cost of a plan from your employer that would cover you (but not any other members of your family) is more than 9.5% of your household income for the year, or if the coverage your employer provides does not meet the “minimum value” standard set by the Affordable Care Act, you may be eligible for a tax credit.

Note: If you purchase a health plan through the Marketplace (Exchange) instead of accepting health coverage offered by your employer, then you may lose the employer contribution (if any) to any employer-offered coverage. Also, this employer contribution - as well as your employee contribution to employer-offered coverage - is generally excluded from income that is taxed for Federal and State purposes. Your payments for coverage through the Marketplace (Exchange) are made on an after-tax basis.

How Can I Get More Information?  The Marketplace (Exchange) can help you evaluate your coverage options, including your eligibility for coverage through the Marketplace (Exchange) and its cost. Please visit https://www.healthcare.gov/ on the internet for more information, including an online application for health insurance coverage and contact information for a Health Insurance Marketplace (Exchange) in your state.  There will also be “Navigators” who are person trained to help you use your exchange.

PART B: Information About Your Employer.  If you decide to complete an application for health insurance in your state Marketplace (Exchange), you will be asked to provide this information below. This information is numbered to correspond to the Marketplace (Exchange) health insurance application.

  1. Employer name _________________________________.   
  2. Employer Identification Number (EIN)_______________.
  3. Employer address.
  4. Employer phone number.
  5. Employer’s City.       
  6. Employer’s State.     
  7. Employer’s ZIP code.
  8. Who can we contact at your job about information about the employer’s health plan, if any?
  9. Phone number of employer contact person listed in #10 above (if different from above).
  10. Email address of person listed in #10 above.