Regulatory Comments of the National Restaurant Association. Also on behalf of:

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1 Regulatory Comments of the National Restaurant Association Also on behalf of: Colorado Restaurant Association Delaware Restaurant Association Kentucky Restaurant Association Maine Restaurant Association Nebraska Restaurant Association Oklahoma Restaurant Association Oregon Restaurant & Lodging Association Pennsylvania Restaurant Association South Dakota Retailers Association Texas Restaurant Association ON: TO: BY: IRS NOTICE , REQUEST FOR COMMENTS ON SHARED RESPONSIBILITY FOR EMPLOYERS REGARDING HEALTH COVERAGE (SECTION 4980H) DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE DELIVERED VIA ELECTRONIC MAIL: ANGELO I. AMADOR, VICE PRESIDENT LABOR & WORKFORCE POLICY MICHELLE REINKE, SENIOR POLICY ANALYST LABOR & WORKFORCE POLICY DATE: JUNE 17, 2011

2 INTRODUCTION On behalf of the members of the National Restaurants Association and the State Restaurant Association signatories listed above, we submit our comments in response to the Request for Comments on the Shared Responsibility for Employers provisions of the Internal Revenue Code ( 4980H) as established by the Patient Protection and Affordable Care Act (PL ) and the Health and Education Reconciliation Act of 2010 (PL ). We appreciate the opportunity to share with the U.S. Department of Treasury and the Internal Revenue Service (IRS) our perspective on how the implementation of the Employer Responsibility sections of the health care law will impact the restaurant and food service industry, especially as an industry with a flexible and variable workforce. We believe this law will impact our industry more than most and appreciate the recognition that first addressing the definition of full-time employee and the provisions linked to it is critical. Throughout the rulemaking process for this law, we urge that the Administration make the processes, procedures, and communication with state and federal government as simple as possible for businesses to comply with both large and small. The more complicated a regulation or guidance is the more confusing it is for restaurateurs to comply. They want to follow the law, but even the most sophisticated operation can be overwhelmed by the complexity of the requirements and/or procedures placed on them as employers. We ask the Administration to continue the open communication with regard to all aspects of implementation of the law. The National Restaurant Association is a leadership committee member of the Employers for Flexibility in Health Care (EFHC) Coalition. The coalition includes leading trade associations and businesses in retail, restaurant, hospitality, construction, temporary staffing, and other service-related industries. The industries represented in the coalition have a unique reliance on large numbers of part-time, temporary and seasonal workers with fluctuating and unpredictable work hours, as well as unpredictable lengths of service. The EFHC Coalition submitted comments in response to the Request for Comments in Notice on June 16, 2011, which are incorporated in their entirety here by reference. We fully support those comments as submitted by the coalition, and in our own comments expand upon and focus on the restaurant and foodservice industry specific concerns. Our comments address the following issues and questions raised by Treasury and the IRS in the Request for Comments: We support the proposed look-back/stability period safe harbor method. We appreciate the recognition that a monthly calculation is unworkable and would potentially cause employees to churn between employer-based coverage and coverage on the State Exchanges. That result is not desired by anyone, nor would reflect the intent of the law. We support the annual calendar consideration of an employer s status as an applicable large employer. Further clarification may be needed, and while potentially complicated to calculate, it provides the same protection against churn for employees of employers on the bubble of 50 full-time equivalents. 1

3 We ask for the application of a 60 day administrative period. This is consistent with current practice within the industry. We support a 90 day waiting period to be applied to all employees, including new hires and newly eligible employees. We have concerns with limitations of the applicability of the 90 day waiting period, especially for employees whose status is unknown or may vary depending on hours worked. We encourage consideration of the challenges restaurateurs would face as applicable large employers offering coverage with the potential liability of assessable payments for certain categories of employees. We look forward to continuing to be engaged throughout the regulatory process on the Shared Responsibility provisions of the law and others. BACKGROUND ON THE U.S. RESTAURANT AND FOOD SERVICE INDUSTRY AND THE CHARACTERISTICS THAT MAKE IT UNIQUE The National Restaurant Association is the leading business association for the restaurant and food service industry. Our mission is to help our members establish customer loyalty, build rewarding careers, and achieve financial success. The industry is comprised of 960,000 restaurant and food service outlets employing 12.8 million people who serve 130 million guests daily. 1 Restaurants are job creators expected to add 1.3 million jobs over the next decade, with employment reaching 14.1 million by Despite being an industry of predominately small businesses, the restaurant industry is the nation s second-largest private-sector employer, employing over nine percent of the U.S. workforce. The restaurant and food service industry is unique for several reasons. First and foremost, small businesses dominate the industry with more than seven out of ten eating and drinking establishments being single-unit operators. We also employ a high proportion of part-time, seasonal, and temporary workers. Restaurants are employers of choice, especially for employees looking for flexible work hours. Our workforce is typically young, with nearly half under the age of 25. We also have a high average workforce turnover rate relative to other industries 75 percent average turnover rate in 2008 compared to 49 percent for the overall private sector. In addition, the business model of the restaurant industry produces relatively low profit margins of only four to six percent before taxes, with labor costs being one of the most significant line items for a restaurant. IMPACT OF THE HEALTH CARE LAW ON RESTAURANT AND FOOD SERVICE INDUSTRY JOBS Growth and success in the restaurant industry means opening more restaurants and more locations, which in turn means jobs in our communities. The uncertainty of the regulatory process and the many rules that are yet to be clarified and fully defined are worrisome for our Restaurant Industry Forecast, National Restaurant Association. 2

4 members. Entrepreneurs, like the dynamic and creative people found in the restaurant and food service industry, are used to dealing with uncertainty and risk. They do so by preparing as best as possible for the unknown. Therefore, restaurateurs have already begun asking the necessary questions and preparing for the full implementation of the new law. Our members tell us they are closely examining their employment base and considering how the labor force will be managed going forward. They are engaged in that process now; not waiting for 2014 to come upon them. We hope that our comments will help the Administration consider the different types of businesses and employees subject to this law and how the promulgation of the rules and regulations to implement it will impact these groups as they anticipate what they are required to do to comply with the Shared Responsibility for Employers provisions of the law come THE DEFINITION OF FULL-TIME EMPLOYEE The National Restaurant Association believes that a full-time employee should be defined as working 40 or more hours of service per week. However, we understand that the law as written constrains Treasury and the IRS flexibility in this area and for this Request for Comment. Regardless, restaurateurs need a more clear definition of full-time employee than what was offered as part of the law. We appreciate Treasury and the IRS effort to address this in contemplating that hours of service would be considered 130 hours per calendar month. Treasury and the IRS have also offered several options for how to comply and determine who would be considered a full-time employee, perhaps over a longer look-back period. In addition, we ask Treasury and the IRS to consider rules that allow employers whose payroll and benefits systems are set up based on pay periods that may not match up with a calendar month. Pay periods of two weeks length are common and calculation, even for a look-back at the end of 12 months for hours of service based on calendar months, may be complicated. Treasury and the IRS should allow employers an alternative, flexible solution that matches this common business practice in the restaurant industry and across the private sector. Throughout the regulatory process, as rules are developed they must have simple steps to complete and be easy for business owners to understand and with which to comply. At the same time there must also be a balance of flexibility for different types of business models as Treasury and the IRS have recognized in this Notice. LOOK-BACK/STABILITY PERIOD SAFE HARBOR METHOD While the proposed calculation of the look-back period may appear to be more complex, upon further consideration this is actually done for each calendar year and not on a monthly basis, and is clearly meant to achieve balance. We agree with the statement by Treasury and the IRS in the Notice that A determination of full-time employee status on a monthly basis for purposes of calculating an employer s potential 4980H liability may cause practical difficulties for employers, employees, and the State Exchanges. These difficulties include uncertainty and inability to predictably identify which employees are considered full-time and, consequently, inability to forecast or avoid potential 3

5 4980H liability. This issue is particularly acute in circumstances in which employees have varying hours or employment schedules (e.g. employees whose hours vary from month to month or who are employed for a limited period). 2 Therefore, we strongly support the concept of a look-back measurement period and a stability period safe harbor. We support the suggestion by Treasury and the IRS that the measurement period should be at the discretion of the employer and could be up to 12 months. This would be consistent with the current practices within the industry, which vary broadly. This proposal would allow for some of the flexibility restaurateurs desire in tailoring their benefits and how to offer them based on the needs of their workforce. We are concerned however that Treasury and the IRS seem to suggest that this look-back period may not be fully applied to new hires or newly eligible employees. Also, consideration needs to be made of the interaction with the 90 days allowed waiting period. 90 DAY WAIT PERIOD POTENTIAL RULES; INTERACTION BETWEEN CODE AND STATUTE The maximum limitation of a 90 day waiting period in the law is an issue that the restaurant and food service industry feels is very important and that it should apply for all employees. This is an issue we fought hard for during the legislative debate. Likewise, we believe the proposed look-back period should also apply for all employees and not be limited as Treasury and the IRS seem to suggest for new hires or newly eligible employees for an employer s plan. Many restaurant employees may fall into this category due to the high turnover of the workforce and the flexible scheduling common in the industry. Treasury and the IRS cite several references where waiting periods exist in current regulations. We note that the joint final regulations for the Public Health Services Act, the Code and ERISA define the term waiting period as the period that must pass before coverage for an employee or dependent who is otherwise eligible to enroll under the terms of a group health plan can become effective [emphasis added]. 3 We note that a waiting period may be different than eligibility or measurement period as the above definition indicates that the employee is otherwise eligible for coverage under the group plan. Usually employers apply eligibility requirements, often based on hours of service or classification/status of the employee, as the basis for eligibility for enrollment in employer s group health plan. As applied to those whose status upon hire as full-time or part-time employee is unknown, it is critical that there be an eligibility period or measurement period before the offer of coverage is required to be made. The measurement period and stability period as contemplated should also apply to those employees for whom status as full-time or part-time is not determined on hire. Due to the nature of our workforce, with a high turnover rate and fluctuating work schedules, it is imperative that employees, regardless of classification, become eligible for coverage only after the look-back measurement period and a subsequent 90-day wait period. We believe this is 2 Notice , Notice ,

6 consistent with the example situations a. and d. offered in the Notice and encourage their adoption. 4 DETERMINATION OF WHETHER AN EMPLOYER IS AN APPLICABLE LARGE EMPLOYER Treasury and the IRS are correct in stating that The definition of full-time employee is key in determining whether and, if so, to what extent, an employer may incur 4980H(a) liability or 4980H(c) liability. 5 However, the restaurant and food service industry is also concerned and believes this definition is critical in determining who is an applicable large employer. As mentioned in the above section about the characteristics of the restaurant industry, the way to grow a restaurant is to expand and add locations. More locations mean more jobs but also many new employees. Many restaurateurs who consider themselves small businesses could easily have 50 full-time equivalents just by adding another location. Also due to the sometimes seasonal nature of the business a restaurateur could oscillate between being over and under the 50 full-time equivalent threshold easily and often. As we understand the threshold calculation outlined in this Notice, Treasury and the IRS are proposing that this calculation be made based on employment from the previous calendar year. While the hours of service and how many full-time and full-time equivalent employees were employed in the previous year must be first determined by month, we assume that applicable large employer status would also be stable for a period of the next calendar year. Treasury and the IRS recognize the need to reduce the churn of employees into and out of employer-based coverage and the state exchanges through the proposed look-back/stability period safe harbor method and similar consideration should be given to the impact of the churn for employers into and out of applicable large employer status. Employees of employers who are on the bubble of qualifying as an applicable large employer will certainly be impacted in this situation where they could be in and out of coverage, or left without an offer of coverage to then be sent to the State Exchange to obtain coverage. We urge the Treasury and the IRS to further clarify the length of stability of applicable large employer status as a calendar year. REASONABLE ADMINISTRATIVE PERIOD FOR COMMUNICATION WITH EMPLOYEES, INFORMED DECISION-MAKING AND COMPLETION OF PAPERWORK Treasury and IRS have invited comments on possible rules for an administrative period between the measurement period and the stability period. We agree that an administrative period must be allowed so that employers can communicate adequately and in multiple ways with employees, explain the benefits being offered them, for employees to make an informed decision, and then paperwork completed for enrollment to occur with the insurer. This is very consistent with current practice in our industry. In many cases, employees may be dispersed over a large geographic area of the country with central administration that may not have direct access to each employee. We recommend an administrative period of 60 days be allowed between the measurement period and the stability period. 4 Notice , Notice , 3. 5

7 CHALLENGES EMPLOYERS FACE IN OFFERING COVERAGE TO CERTAIN CATEGORIES OF EMPLOYEES Many employees in the restaurant industry are tipped employees, receiving most of their income in tips paid by the customer. An employee s full value of tips is not known by the restaurateur. Taxpayers with tipped income are required to report tips by filing such information as part of their tax returns. Because tip income is not included in paychecks but often taken home after each shift, there may be instances where tipped employees paychecks are zero or of negative value because of the tax and other withholding that may be required by federal or state law. Today, if an employee chooses to participate in their restaurant s health plan, they would pay the employee contribution towards the premium. If that employee contribution is not paid through a payroll deduction, the payment may be made directly to the insurer. However, under the new law, if that same employee were dropped from the restaurant s plan, and instead obtained a premium tax credit and used it to purchase coverage on the state exchange, the employer could be liable for an assessable payment. The industry believes that the restaurateur should not be penalized if an otherwise eligible employee, whose contribution is affordable to them, fails to pay their employee contribution simply because their paycheck does not cover that amount. Rules should be established by Treasury and the IRS to ensure that employers, such as restaurants, are not unfairly penalized if employees for whom coverage is still affordable do not pay their share of the premium and are dropped from coverage as a result. Precedent exists for such consideration. We note that Massachusetts, in its implementing regulations for its own health care law, acknowledged the difficulty of employers with certain classes of employees complying with similar requirements at the state level, including for wait staff, service employees, and service bartenders. Also included on the list are temporary workers, part-time employees, and student employees. 6 COMMENTS ON RELATED PROVISIONS The Notice welcomed comments on implementation of other sections of the law related to Shared Responsibility for Employers. We would like to take this opportunity to mention some of the questions the industry has raised regarding employers interaction with the State Exchanges, the Affordability test of an applicable large employer s plan, and the rules and guidance IRS has indicated it may develop on the non-discrimination provisions of the law. Throughout the law, it is clear employers will have a great deal of interaction with the Exchanges and any number of federal agencies. At the very least all employers are required to be a source of information for all their employees about how to access the Exchange in their state by March 1, Restaurateurs wonder what information specifically must be provided and when they might know this to be able to prepare to comply. Others ask of the information exchange between the employee, employer, and federal agencies and how determinations will be made. 6 Commonwealth Health Insurance Connector Authority: 956 CMR 4.06(3)(b)4.d. 6

8 Who will make those determinations if an employee qualifies for a premium tax credit, potentially triggering an employer assessable payment? Will there be an appeals process? Another concern is the notion that the determination of affordability of an employer s offered health plan will be based on an employee s household income. Restaurateurs know that this is not information they will know or want to know for privacy reasons, but nonetheless it is the measure by which the law seeks to judge the affordability of an employer s plan. How restaurateurs can comply with requirements based on a measure they will not know is very concerning. The industry believes that an alternative must be developed in future consideration regulatory rules and guidance. Finally, we would like to reiterate comments we previously submitted to Treasury and the IRS with regard to the implementation of the non-discrimination provision under Section 2716 of the Public Health Service Act, as added by PL , amended by PL We believe further guidance is needed and recommend delaying implementation of this provision until at the very least; with the Shared Responsibility for Employers is effective after We have deep concerns with the current rules for self-insured plans being applied to fully insured plans. Treasury and the IRS have the authority to create similar rules to those contained in Sections 105(h)(3), (4), and (8) of the Internal Revenue Code. We also believe the penalties are too harsh for insured plans and should be reconsidered so as not to encourage employers to not offer coverage due to the legal and financial liabilities they may be subject to under this provision of the law. It is common in the restaurant and food service industry that even though affordable, employees are disinclined to accept employer-offered coverage if they are required to contribute anything to the cost of their monthly premium. In addition, the current rules allow restaurateurs to structure their insured plans in a way that would violate the non-discrimination provision based on the current rules that apply to self-insured plans. Therefore, we believe Treasury and the IRS should consider implementation guidance for nondiscrimination of fully-insured plans that allows for a Highly Compensated Individual Simplification Safe Harbor where classification of employees into decision-makers and nondecision-makers is reasonable. We envision that employees within categories would be treated the same but that different coverage should be able to be offered to different categories of employees. We appreciate that Treasury and the IRS have delayed the effective date of the provision until further guidance can be issued as this is a critical issue for employers as it relates to complying with the requirement of the law, especially for those subject to the Shared Responsibility for Employers provisions. CONCLUSION In conclusion, the National Restaurant Association and the State Restaurant Association signatories to these comments appreciate the recognition of the importance of the definition of full-time employee to the restaurant and food service industry. The Department of Treasury and the IRS have shown flexibility and an understanding that there are different types of businesses 7 On November 4, 2010, the National Restaurant Association submitted comments in response to IRS Notices On March 11, 2011, the National Restaurant Association, as a member of the Small Business Coalition for Affordable Healthcare, submitted comments in response to IRS Notice

9 that must comply with the requirements of the law and flexibility must be allowed. We support the look-back/stability period safe harbor method for all employees, including new hires and newly eligible employees, and encourage the same stability period clarification for applicable large employer status. We ask for application of a 60 day administrative period, and that the 90 day waiting period applies to all. We encourage consideration of the treatment of certain employees as it impacts an applicable large employer s shared responsibilities under the law. We look forward to continuing to be engaged throughout the regulatory process, and to have the opportunity to consider and comment further on the implementation of these and other provisions of the law that impact the restaurant and food service industry. Sincerely, Angelo I. Amador, Esq. Vice President Labor and Workforce Policy Michelle Reinke Senior Policy Analyst Labor and Workforce Policy 8