Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The Senate on Thursday failed to advance the American Jobs and Closing Tax Loopholes Act (H.R. 4213) (pdf), the “tax extender” bill that would have provided for additional months of emergency unemployment benefits and continued various tax relief programs, among other things. The 57-41 vote fell three votes short of limiting debate and scheduling final floor action on the measure. The latest version of the bill offered by Sen. Max Baucus (D-MT) was introduced on Wednesday in an effort to trim costs and gain enough support to pass it. Previous Senate-passed tax extender legislation would have extended the COBRA premium subsidy and various unemployment programs through the end of the year. In May, the House approved this legislation once COBRA premium subsidy extensions were dropped. Earlier this month, the Senate introduced a substitute version of the bill that lacked certain defined contribution pension plan fee disclosure provisions. After it became evident that he did not have enough votes to limit debate on the bill, Baucus introduced a scaled back version that ultimately – like the latest edited version – failed to gain sufficient approval. At this point, Senate passage of the bill in any form appears unlikely.

Photo credit:  MBPHOTO, INC.

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On Friday, the Senate unanimously approved the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act, (pdf) a bill that reverses a 21 percent payment cut for doctors in Medicare and TRICARE, updates the physician payment formula through November 30, 2010, and provides temporary funding relief for single- and multi-employer pension plans that suffered significant losses in 2008. With respect to the pension relief provisions, according to a summary, (pdf) employers that elect the relief would be required to make additional contributions to the plan if they pay compensation to any employee in excess of $1 million, pay extraordinary dividends, or engage in extraordinary stock buybacks during the first part of the relief period. Additional relief would be available to certain plans sponsored by charitable organizations. The legislation now needs approval by the House.

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The Internal Revenue Service (IRS) has made available on its website a revised Form 941, (pdf) the Employer’s Quarterly Federal Tax Return, which can be used to claim the HIRE Act’s payroll tax exemption for wages paid to qualified employees. Signed into law on March 18, the Hiring Incentives to Restore Employment (HIRE) Act, among other things, relieves certain employers from their obligation to match the OASDI (Social Security) portion (typically 6.2% on the first $106,800 of wages for the calendar year) of FICA tax for certain workers hired after February 3, 2010 and before January 1, 2011, on wages paid March 19 through December 31, 2010. Those hired must attest that they have been “substantially” unemployed for at least 60 days prior to the date of hire.  The IRS has also provided instructions (pdf) for the new Form 941 to explain how this exemption can be claimed on the second quarter return.

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On Tuesday, the Senate resumed consideration of the American Jobs and Closing Tax Loopholes Act (H.R. 4213) (pdf), also known as the “tax extender” or “jobs bill” that would extend emergency unemployment compensation and other tax break programs, as well as provide temporary pension funding relief. Although the Senate passed a tax extender bill in March, the House of Representatives on May 28 narrowly cleared a scaled-back version of this legislation that omitted a number of the original provisions, including an extension of the premium COBRA subsidy. The revised Senate bill unveiled this week, which has been offered in the form of a substitute amendment, does not contain the defined contribution plan fee disclosure provisions that would have required the creation of rules relating to fees incurred in connection with defined contribution plans (such as 401(k) plans) for plan administrators and plan participants. A COBRA subsidy extension was not among the changes included in the Senate substitute either. A summary of all of the changes made by the Senate amendment can be found here. (pdf)

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On Friday the House of Representatives narrowly approved (215-204) a scaled-back version of the American Jobs and Closing Tax Loopholes Act (H.R. 4213), a bill that would extend a number of benefit programs, including emergency unemployment payments, and provide for pension funding relief and fee disclosures. Details of this joint legislation were first unveiled last week.  Due to the measure’s escalating cost estimate, however, members of Congress agreed to trim a number of benefit extensions to ensure enough votes for passage, including a last-minute decision to omit the COBRA premium subsidy extension entirely. Other provisions, such as the one providing for an extension of the emergency unemployment benefits program, was reduced by one month. Specifically, as outlined in a summary (pdf) of the revised bill, certain provisions would do the following:

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On Thursday, House Ways and Means Committee Chairman Sander Levin (D-MI) and Senate Finance Committee Chairman Max Baucus (D-MT) introduced a summary of the American Jobs and Closing Tax Loopholes Act, (pdf) joint legislation that, among other things, extends emergency unemployment benefits and COBRA credits through the end of 2010, and provides pension funding relief for single- and multi-employer pension plans. The legislation will be introduced as a House Amendment to the American Workers, State, and Business Relief Act of 2010 (H.R. 4213), which the Senate passed in March as an amendment to the original Tax Extenders Act of 2009 that cleared the House in December.

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The Internal Revenue Service (IRS) has made available Form W-11 (pdf), the Hiring Incentives to Restore Employment (HIRE) Act Employee Affidavit employees are to use confirm that they are “qualified” employees under the HIRE Act. An employer seeking to benefit from the HIRE Act’s payroll tax holiday or retention tax credit must have employees complete form W-11 or a similar form to attest that they began employment after February 3, 2010, and before January 1, 2011; have not been employed for more than 40 hours during the 60-day period ending on the date they begin employment with the employer seeking the HIRE Act benefits; are not being employed to replace another employee unless the other employee separated from employment voluntarily or for cause (including downsizing); and are not related to the employer seeking the tax benefit.

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The Internal Revenue Service (IRS) has set up a website to provide employers with guidance on the payroll tax exemption and business credit provisions of the newly-enacted Hiring Incentives to Restore Employment (HIRE) Act.  This Act, among other things, relieves certain employers from their obligation to match the OASDI (Social Security) portion (typically 6.2% on the first $106,800 of wages for the calendar year) of FICA tax for certain workers hired after February 3, 2010, and before January 1, 2011, who have been substantially unemployed for at least 60 days. The IRS has created a draft model affidavit (Form W-11) (pdf) for employees to certify their un- or underemployment status, although employers may use their own form. This tax holiday covers wages paid to these employees on or after March 19, 2010 and only through 2010, and does not apply to the FICA tax portion covering the Medicare Hospital Insurance contribution nor to other state and federal employer tax obligations. The HIRE Act also creates a similar tax holiday for employers covered by the Railway Retirement Act instead of FICA. A business (tax) credit of up to $1000 is available to certain employers in 2011, with respect to employees retained for at least 52 weeks.

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On Thursday, President Obama signed into law the Hiring Incentives to Restore Employment (HIRE) Act (H.R. 2847), the scaled-down jobs bill that provides employers with various tax breaks for hiring and retaining previously unemployed workers. The Senate approved this measure on Wednesday by an overwhelming 68-29 margin. In addition to exempting employers from paying 2010 Social Security taxes on wages up to $106,800 on each new employee who has been out of work for at least 60 days, the HIRE Act provides employers with a $1,000 income tax credit for every new employee retained for at least a year, and allows small businesses to deduct up to $250,000 for certain capital expenditures in the year purchased.

For more information on this new law, see Littler's ASAP:  HIRE Act Signed Into Law — What it Means to Employers by GJ Stillson MacDonnell.
 

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On Wednesday, the Senate overwhelmingly approved by a 68-29 vote the Hiring Incentives to Restore Employment (HIRE) Act (H.R. 2847), the nearly $18 billion jobs bill that will provide employers with financial incentives for hiring unemployed workers. Specifically, an employer would be exempt from paying its share of 2010 Social Security taxes on any new hire who has been without full-time employment for at least 60 days. The maximum tax break an employer could gain per employee under this provision would be $6,621, or 6.2 percent of total wages paid in 2010 up to the $106,800 FICA wage cap. Employers would also be eligible to receive a $1,000 income tax credit for every new employee retained for 52 weeks. Earlier this week, the Senate voted 61-30 to limit debate on this measure.

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On Monday, the Senate voted 61-30 to limit debate on the Hiring Incentives to Restore Employment (HIRE) Act, the $15 billion jobs bill the House of Representatives approved on March 4. The HIRE Act was introduced as an amendment (S. Amt. 3310) to H.R. 2847, the more expansive jobs bill the House had already passed in December. The Senate initially cleared this scaled-down jobs bill on February 24, but because the House made minor revisions to the bill, the Senate once again needs to vote on the final jobs package.

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On Wednesday, the Senate passed by a 62 to 36 margin the Tax Extender Act of 2009 (H.R. 4213), legislation that would extend until Dec. 31, 2010 the 65% premium COBRA subsidies and emergency unemployment insurance benefits, both programs that are set to expire in the coming weeks. The bill also extends several other tax credit initiatives, and includes pension funding relief measures. On Tuesday, the Senate voted 66-34 to limit debate on this bill, which was introduced by Sen. Max Baucus (D-MT) as an amendment (S. Amdt. 3336) in the nature of a substitute to the tax extender bill the House of Representatives passed in December.

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On Tuesday, the Senate voted to end debate on a $150 billion bill that would extend premium COBRA subsidies and emergency unemployment insurance benefits through December 31, 2010, as well as continue certain programs aimed at providing pension-funding relief. Sen. Max Baucus (D-MT) introduced the American Workers, State and Business Relief Act of 2010 (pdf) as an amendment (S. Amt. 3336) in the nature of a substitute to the Tax Extender Act of 2009 (H.R. 4213).  The tax extender bill has been serving as the vehicle to provide extensions to these and other expiring tax credit programs. The premium COBRA subsidy and emergency unemployment benefits were recently given one-month extensions through the Temporary Extension Act of 2010, signed into law on March 2.

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On Thursday, the House of Representatives voted 217 to 201 in favor of the Hiring Incentives to Restore Employment (HIRE) Act, the $15 billion jobs bill introduced by Sen. Majority Leader Harry Reid (D-NV) as an amendment (S. Amt. 3310) (pdf) to H.R. 2847, the more expansive jobs bill the House previously passed in December. The Senate cleared this scaled-down jobs bill last Wednesday by a 70-28 margin. Because the House intends to change the effective date of a tax provision in order to offset its cost, the Senate will once again need to approve the amended bill before it can be signed by the President.

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On Wednesday, the Senate voted 70-28 in favor of the Hiring Incentives to Restore Employment (HIRE) Act, the $15 billion jobs bill introduced by Sen. Majority Leader Harry Reid (D-NV) as an amendment (S. Amt. 3310) (pdf) to H.R. 2847, the more expansive jobs bill that cleared the House of Representatives three months ago. On Monday, the Senate voted 62-30 on a cloture motion to allow the slimmed-down bill to proceed. The HIRE Act, among other things, would exempt any employer that hires a worker who has been without full-time work for at least 60 days from paying the employer’s share of Social Security taxes on that worker for 2010, and extend a business tax deduction for certain capital investments.

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On Monday, the Senate voted 62-30 on a cloture motion to advance the scaled-back jobs bill introduced by Sen. Majority Leader Harry Reid (D-NV). Reid’s bill, the Hiring Incentives to Restore Employment (HIRE) Act, has been introduced as an amendment (S. Amt. 3310) in the nature of a substitute to H.R. 2847, known as the Jobs for Main Street Act, which cleared the House of Representatives in December. In a move that surprised even some Senate Democrats, Reid decided that the Senate would consider smaller, separate jobs bills instead of the $85 billion bipartisan bill (pdf) unveiled by Sens. Max Baucus (D-MT) and Charles Grassley (R-IA) on February 11. This decision was allegedly instigated after Senate Democrats complained to Reid that too many concessions had been made in order to garner Republican support of the bill. Reid has stated that introducing smaller bills will force the Senate to focus on job creation.

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The Internal Revenue Service (IRS) will begin mailing questionnaires to 401(k) plan sponsors to gather information about compliance with applicable tax rules. The questionnaire will focus on 401(k) plan operations, including eligibility, employee deferral rates, compensation definitions and nondiscrimination testing. The IRS is expected to mail several thousand questionnaires to 401(k) plan sponsors around the country to help make certain it reaches a representative sample.

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A draft of the 362-page Senate jobs bill (pdf) has been circulating among members of Congress this week. Although still a work in progress, the draft bill includes provisions providing for, among other things, unemployment benefits and COBRA health insurance premium extensions, tax incentives to promote hiring, spending programs on transportation initiatives, pension funding relief, and a tax proposal designed to raise revenue from foreign-held assets and trusts.

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With the Obama administration’s renewed emphasis on job creation, a number of lawmakers have introduced bills that focus on employer incentives. On Wednesday, Senators Chuck Schumer (D-NY) and Orrin Hatch (R-Utah) released details about the Hire Now Tax Cut Act of 2010 (S. 2983), legislation that would exempt any employer that hires a worker who has been without full-time work for at least 60 days from paying the employer’s share of Social Security taxes on that worker for 2010. According to its sponsors, the advantage of structuring a tax incentive in this fashion is that it would provide businesses with an immediate benefit, instead of rewarding them with a tax credit in 2011. Additionally, the benefits to an employer would increase the longer it retains and the more it pays the employee, up to the maximum Social Security wage of $106,800.

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Today President Obama outlined his plan to promote the growth of small businesses as a way to stimulate the economy and reduce unemployment. During his State of the Union Address, Obama proposed using $30 billion repaid funds that financial institutions received through the Troubled Asset Relief Program (TARP) to increase the ability of small businesses to obtain loans. In addition, he called for tax incentives for businesses to invest in new plants and equipment, and the elimination of capital gains taxes on small business investment. 

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In keeping with a key theme of President Obama’s State of the Union Address, lawmakers introduced a number of bills this week that seek to increase hiring. Sen. Al Franken’s (D-Minn.) bill, the Strengthening Our Economy Through Employment and Development (“SEED” or “Cash For Jobs”) Act (S. 2952), would take $10 billion in existing funds from the Troubled Asset Relief Program (TARP) and re-allocate it to creating jobs in the private and public sectors. This measure would use half of this amount to provide wage subsidies to encourage private sector hiring. Specifically, according to a press release:

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Two bills introduced yesterday would amend the Internal Revenue Code to provide employer tax credits for hiring. Rep. Bob Etheridge’s (D-NC) bill, the Hiring Incentives to Reinvest and Incentivize New Growth (HIRING) Act of 2010 (H.R. 4437), is designed to promote employment in general. According to a summary of the bill, the HIRING Act would provide a refundable tax credit to any business that expands its payroll by at least 3 percent in 2010 or by at least 5 percent in 2011. Additionally, the bill would provide a credit of 15 percent of additions to payroll in 2010 and 10 percent in 2011. The credit would be based on payroll and businesses would be rewarded for hiring new employees, increasing employee hours, or restoring employee pay. If enacted, the provisions of this bill would apply to taxable years beginning after December 31, 2009. This bill has been referred to the House Committee on Ways and Means.

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