Kelly A. Cahill

Tuesday, August 20th, 2013

Deadline to Provide Employees Notice of Health Coverage Options (Oct. 1, 2013)

All local governments, regardless of size, must provide written notice by Oct.1, 2013, to all employees of their option to obtain healthcare coverage through the public exchange (or “Marketplace”), which will be available on Jan. 1, 2014.

The deadline is part of the Affordable Care Act, and while the mandate for large employers (50 or more full-time equivalent employees) to provide “affordable” healthcare coverage has been pushed back to 2015, the individual mandate to have adequate insurance still goes into effect in 2014. As such, employers are required to provide notice of the public exchange option to employees.

The Department of Labor (DOL) has a template notice form available for employers who provide sponsored health coverage, although units of local government may decide to expand on the notice. For example, the individual mandate is not explained in the template notice form, so an employee may not understand that the failure to obtain health insurance would result in the employee paying a penalty.  Another form is available for employers who do not provide a sponsored health plan.

The notice to employees must include the following information:

  • The public healthcare option is available as of 2014.
  • Contact information and a description of the public option. Note that the template form only provides contact information through, so this can seemingly be communicated without providing specific details of Illinois’ healthcare exchange options. In fact, the website instructs individuals that they can compare options only as of Oct.1, so there is a limited amount of information about the public options available at this time.
  • The employee may be eligible for a premium tax credit by using the Marketplace.
  • The employee may lose any employer contribution to an employer sponsored health plan by electing the public option, and that some/all of the employer contribution may be excludable from federal income.

The notice may be provided by first class mail, or it may be provided electronically if it comports with the DOL’s safe harbor provisions, including a statement that the employee’s email address was voluntarily provided for purposes of receiving such communications (see all provisions).

Another wrinkle in the notice requirement is that employers may want to indicate whether their health plans meet the minimum value standard (MVS) set out in the Internal Revenue Code. This is an intricate determination for which the IRS has issued a special notice to improve understanding of the calculation. From a big-picture perspective, a plan will meet the MVS if it covers at least 60 percent of the total allowed health benefit costs. While the MVS information is not technically required as part of the notice to employees, failing to provide this information may result in the local government having to field several inquiries for each employee who applies for coverage through the Marketplace. Part B of the template notice form includes the MVS information for guidance.

Please contact our office for additional information.

Kelly A. Cahill

Author: Kelly A. Cahill

Wednesday, February 13th, 2013

Police Officer’s Class Action for Electronic Overtime

Local governments should review internal policies regarding communications with employees during unscheduled work hours.  A Chicago police sergeant is pursuing a claim to recover overtime pay for time spent on the phone regarding police matters while he was off-duty.  The sergeant was recently given leave to seek other class members, which he alleges could be around 200 other police officers, who were similarly required to take phone calls during non-work hours.

The overriding concern is overtime, because non-exempt employees are subject to overtime pay under the Fair Labor Standards Act for any time worked beyond regular hours.  Trying to quantify the amount of time an employee is connected remotely to work is challenging, because it is difficult to pinpoint how much time a person spends, for example, using a personal phone for work-related communications.

Another variable is determining how much time a person works that is considered “on-call.”  Though the case did not involve a government unit, the court in Pabst v. Oklahoma Gas & Electric Company determined that employees who received a handful of alerts on nights and weekends were on-call and were entitled to compensation, including overtime, for “fifteen hours per weekday and twenty-four hours per Saturday and Sunday,” in addition to their regularly scheduled hours.  The employees received back-pay for the whole period of time they were on-call, which was almost entirely overtime.

The financial concerns extend beyond just back pay/overtime pay, because an employee may be entitled to recover legal costs and other possible damages if successful.  Also, consider that many lawsuits, such as the Chicago sergeant’s present case, involve a group of employees, thereby multiplying the potential liability for employers.

Preventive measures should include deciding which employees should be contacted off-duty, how to communicate with employees who are off-duty, and how employees should document any time devoted to work off-duty.  All employment policies should be reviewed holistically to ensure that the policies are consistent, such as policies covering telecommunications, use of work-provided electronic devices, internal and external communications, time recording, security, and disciplinary proceedings if an employee does not follow the policies.  Courts and arbitrators will typically construe ambiguous policy provisions against the employer should a dispute arise over policies that do not clearly state the same expectation.

All local government units should review their policies to ensure that employees are properly on notice as to how to handle work-related communications while an employee is off-duty.  Even if successful, a government unit will likely spend a great amount of time and money defending itself from an electronic overtime claim.

Kelly A. Cahill

Author: Kelly A. Cahill

Friday, December 21st, 2012

Legislative Updates

capitol-columnsAuthor: Kelly A. Cahill

Effective Jan. 1, 2013

The following bills and amendments will go into effect at the beginning of the New Year, and we are taking this opportunity to apprise you of some of the more significant changes that may impact local governments. These updates are intended to provide concise summaries of new legislation and are not all-inclusive. Please contact us directly with specific questions if you intend to implement changes based on any of this material:

Illinois Transparency and Accountability Portal (ITAP)

Municipalities, townships, and counties will be required to provide additional data for all employees to the Illinois Central Management Services (CMS) for inclusion in the searchable online informational database, ITAP.

The reportable data includes the names, titles, current pay rate, and year-to-date pay for municipal, township, and county employees and can be searched by the unit of local government and the position title.  Each unit of government will be responsible for the accuracy of the information submitted and must submit information in a manner consistent with CMS requirements.  We believe the information will need to be periodically updated in light of the year-to-date posting requirement. (Public Act 97-744)

Amendment to Open Meetings Act

The agenda provisions of the Open Meetings Act will increase local government’s obligation to describe agenda items and post notice.  The full article provides a summary of the new changes that go into effect.

1. Agenda Information: You will need to be sure that your agendas clearly state the general subject matter of any resolution or ordinance that is going to be a subject of final action at your meeting. You may comply with the law by simply reciting the name of the ordinance or resolution under consideration. This is a good practice, but be sure if you do this that the ordinance or resolution is properly and completely named. Thus, for example, if an ordinance authorizes two actions – such as a purchase of property and borrowing for that purpose – be sure the agenda clearly identifies both actions.

It is worth noting that originally the proposed law would have applied not just to final action, but also to items merely to be discussed and not acted on. This would have been a significant change in the law. The final bill, however, narrowed the scope of this requirement only to items that will be the subject of final action. Thus, you may continue to discuss new matters not specifically listed on your agenda. You just need to be sure that no final action is taken unless it has been clearly described.

2. Changed Posting Requirements: Under existing law, governments are required to post the agenda for a meeting at least 48 hours before that meeting. However because sometimes these are posted indoors, they are not technically available to the public during the time a public building is closed such as on nights and weekends. In response, the new law now requires that at least one copy of any requested notice and agenda for the meeting be continuously available for public review during the entire 48-hour period preceding the meeting. You can comply with the continuous notice requirement by posting your notice on your website. According to the Illinois Municipal League, other posting options that will be acceptable include posting the notices on the inside of a window that can be seen from the outside or installing an enclosed bulletin board outside of your city or village hall. The primary point is that there must be some sort of continuously available notice. It is also important to note that this new language does not appear to absolve public bodies of their existing obligation to post agendas and notices 48 hours in advance at their principal office and at the location where the meeting is held as required by existing Open Meetings Act law.

As before this amendment, inadequate notice or posting can result in a violation of the Open Meetings Act. The new Act makes clear, however, that if a notice or agenda is not continuously available for the full 48-hour period because of actions outside of the control of the public body, then that lack of availability will not render invalid the posted meeting or actions taken at the meeting. The IML offers examples of things outside municipal control including such things as a server crash or a power outage that might make it impossible to see an on-line notice or if weather or vandals destroy a properly posted notice. So if you otherwise properly post your notices online or outside in an enclosed case, then ideally actions outside your control will not render your postings inadequate. (Public Act 97-827).

Traffic & Vehicle Law Enforcement

Changes to the Illinois Vehicle Code will prohibit vehicles from using license plate covers. A number of changes will also impact the equipment requirements and operation of motorcycles.  Other changes include the use of a cell phone in a construction zone, expanded parking privileges for persons with disabilities, and rules permitting in-line skaters to use certain public streets. (Public Acts 97-743, 97-830, 97-845, 97-1023).

Prevailing Wage Act

The amendment now removes the burden of the government employer to notify contractors subject to Prevailing Wage of revisions to the Act. Employers may now indicate in the contract that revisions are accessible on the Illinois Department of Labor website.  (Public Act 97-964).

Employer Access to Social Media Passwords

Legislation prohibits any employer from requiring its employees to provide it with passwords or access to social media accounts. (Public Act 97-875).

Release of Juvenile Records

Permits a law enforcement agency or officer to have limited access of a minor’s law enforcement records if “the agency or officer believes that there is an imminent threat of physical harm to students, school personnel, or others who are present in the school or on school grounds.” (Public Act 97-1104).

Swimming Facility Licensing and Construction

Several provisions of the Swimming Facility Act have changed regarding alterations to a swimming facility, including the fee structure and requirements that many types of alteration must be coordinated by a State registered and qualified swimming facility contractor. (Public Act 97-957).

Special Service Area (SSA) Procedures

There are new requirements requiring notice and hearing procedures for SSAs. Please contact us directly with any questions regarding the changes to these requirements. (Public Act 97-1053).

Kelly A. Cahill
Author: Kelly A. Cahill

Thursday, October 18th, 2012

ZRFM Lawyers to Address Illinois Municipal League Conference

Richard G. FloodSeveral lawyers from Zukowski, Rogers, Flood & McArdle will speak on Saturday, Oct. 20, at the 99th annual convention of the Illinois Municipal League. The gathering takes place Oct. 18-20 at the Hilton Chicago Hotel, 720 South Michigan Ave.

Between 1:30 and 2:30 p.m., Ryan P. Farrell, Kelly A. Cahill and Ruth A. Schlossberg will make presentations at a session titled “Redeveloping Distressed Properties: Clearing Out the Backlog in Order to Move Forward.” The trio will be joined by John Green, director of the special asset group at Home State Bank in Crystal Lake. Illinois State Rep. Thaddeus Jones, who also is a Calumet City alderman, will moderate the session.

Among the topics to be discussed are the nuts and bolts of calling letters of credit or bonds to complete infrastructure improvements, the need to work out underlying development agreements, and distressed property challenges such as demolition and property maintenance.

Between 2:45 and 3:45 p.m., Richard G. Flood and Schlossberg will make presentations at a session titled “Open Meetings Act and FOIA in the Internet Age.” They will be joined by Matt Rogina, an assistant attorney general for the public access counselor’s bureau.

The session will use realistic, hypothetical situations. Rich Flood, a member of the 2012 Illinois Municipal League Resolutions Committee, will act as moderator. Both of the sessions featuring ZRFM attorneys will take place in Northwest Stevens 5 on the hotel’s lower level, north.

Zukowski, Rogers, Flood & McArdle is the largest law firm in McHenry County, Illinois. For more than 50 years, the firm has represented banks and represented local government units. The firm has offices in Crystal Lake, Chicago and Oak Brook. Please view our contact page if you have any questions for our lawyers or other professionals.

Friday, September 23rd, 2011

ZRFM Shares Ideas on Effective Local Government

Richard G. Flood, Ruth Alderman Schlossberg and Kelly A. Cahill spoke on the topic of effective local government at the annual conference of the Illinois Municipal League. The conference took place Sept. 15-17, 2011, at the Hilton Chicago Hotel.

Their hourlong Sept. 16 presentation was titled, “You’ve Been Elected. Now What Do You Do?” A video of the event appears below. (Flood speaks first, followed by Schlossberg at the 15:50 mark and Cahill at 37:10.)

The practical session provided officials with a better understanding of their roles, powers and limitations. The session focused on a combination of theory and practice to help attendees make sure their term as an elected official is productive and satisfying.

The three attorneys practice local government law at ZRFM. Flood and Schlossberg co-authored a 170-page book for newly elected officials, published by the Illinois Municipal League, from which their presentation got its name. For more information, please view ZRFM’s Books and Publications.

During Flood’s tenure with Zukowski, Rogers, Flood & McArdle, the Crystal Lake-based firm has grown from six lawyers to 19 and from one to three offices. ZRFM is the largest law firm in McHenry County, Illinois. In addition to Flood’s renowned local government law practice, he also focuses on divorce and family law.

Schlossberg joined Zukowski, Rogers, Flood & McArdle in 2003. She is thoroughly familiar with all of the recently rewritten provisions of the Illinois “sunshine laws” — the Illinois Freedom of Information Act (FOIA) and the Illinois Open Meetings Act (OMA). She advises elected officials and government administrators on operating with increased certainty so they can streamline work and avoid unfunded expenses.

Cahill serves as a municipal attorney for the village of Algonquin and acts as counsel to the planning and zoning boards of the cities of McHenry and Genoa. She also practices employment law. Cahill speaks frequently on labor and employment law and provides training to various organizations on diversity and sexual harassment awareness.

For more about their professional credentials, please view the biographies of Richard Flood, Ruth Alderman Schlossberg and Kelly Cahill.